Cite as: James Rice, A Successful Case in Made for Granting Refugee Status to a Woman Fleeing Her Own Country to Protect Her Daughter from Female Genital Mutilation, 4 Gonz. J. Int’l L. (2000-01), available at http://www.gonzagajil.org/.
A Successful Case is Made for Granting Refugee Status to a Woman Fleeing Her Own Country to Protect Her Daughter from Female Genital Mutilation
by James Rice
Abstract
In November 1996, the UNHCR office in Hong Kong recognised a claim for asylum made by a woman who along with her two children had fled from her native Ghana because she feared that her daughter would be harmed by being subjected to female genital mutilation (FGM). The practice of FGM poses a significant harm to women in Sub Saharan Africa and parts of the Middle East and Asia. FGM persists because of cultural and religious factors. Despite this, it is morally wrong because it is done by in large without consent, and it inflicts severe pain and lasting ill effects on those it is done to. This case, relying on other decisions made by Canadian and the United States immigration boards is a significant development in the protection of girls and women who are subjected to FGM.
Female Genital Mutilation as a Ground for Refugee Status
The issue of violence against girls and women has been largely neglected within the wider issue of displaced peoples. Increasingly however, attention has been drawn to the serious problems involving rape, beatings, torture and mutilation that women and children are being subjected to around the world. The 1951 Geneva Convention Regarding the Status of Refugees, defines a refugee as someone who:
…owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of (her) nationality, and is unable or, owing to such fear, unwilling to avail herself the protection of that country.1
While the 1951 Geneva Convention does not specify "gender related" grounds for being recognised as a refugee, both the United States and Canadian governments have in recent landmark immigration decisions, widened the scope of protection to include women who have fled their countries of origin because of fears that they would be subjected to the practice known as female genital mutilation (FGM).2
In November 1996, the United Nations High Commission for Refugees ruled that the threat of a child’s mutilation would be a ground for recognition as a refugee based on her being a member of a "particular social group" and thus entitled to protection . In this case, the UNHCR Hong Kong office granted a woman’s claim for asylum based on the assertion that her three year old daughter was in danger of being mutilated in her native country of Ghana.
This decision by the UNHCR, was a very important step in dealing with the phenomenon of female genital mutilation. Here, the High Commissioner’s recognition that the threat of FGM can be grounds for asylum demonstrates a clear position taken by the United Nations High Commission against this practice and encourages those who are making an effort to eliminate it. The decision also indicates a way out for those individuals who are threatened by it.
This paper examines the issue of female genital mutilation which is widely carried out today in many parts of sub-Saharan Africa as well as in a large part of the Middle East and in some parts of Southeast Asia.3 Although it is not known precisely how many women are subjected this form of abuse, it has been estimated by the World Watch Institute in 1996 that as many as 100 million women and girls in Africa are subjected to FGM. Other studies have estimated that there are between eighty-five and 110 million women who have been subjected to this procedure4 and that some two million women and girls are being subjected to FGM each year5.
The Scope and Practice of FGM
The reasons for subjecting women to this treatment are varied. There are religious6, cultural7 and (alleged) health8 reasons for the practice of FGM. It is also widely believed in some regions of Africa and the Middle East that circumcision of women is required for religious reasons9, although there is no direct evidence in either the Bible, the Koran or the Sunnah to support this. Nevertheless, there have been Islamic religious decrees which have stated that FGM is a religious duty10.
Recent judicial decisions in Egypt have served to underscore the deep divisions within the Islamic world as to whether "female circumcision" is required among Moslem women. In December 1997, the Supreme Administrative Court upheld a decision in July 1996 by the Egyptian Health Ministry to ban female genital mutilation.11 The decision by the Court was based upon its ruling that FGM is not required under Islamic teaching and therefore the practice is subject to Egyptian secular law. The Supreme Court decision overturned a lower court ruling that the government was exceeding its authority in banning the practice. However, members of Egypt’s Islamic clergy disputed the Court’s decision. Sheikh Youssef al Badry, claimed that the practice was an inherent part of Islam. He was quoted as saying in response to the court’s decision:
The judge is a man, and a man can do right or make mistakes. We shall meet in the day of judgement in front of Allah. I want to see what he says to Allah.12
This statement is consistent with the Islamic clergy’s ruling in 1994, where Sheikh Gad-Al Haq stated that female genital mutilation is an obligation for Moslems.13 This conflict between stated positions of governments trying to ban the practice and the positions of some clerics reveals the inherent problem for those women who are subject to it.
The practice of FGM has in recent years been the subject of legislation in several countries in the Middle East, Africa and the West.14 In addition to the much disputed ban in Egypt, FGM has been prohibited in Burkina Faso, Ivory Coast, Kenya and Sudan.15 In addition, the practice is no longer being practised in Iran, Iraq, Jordan, Libya or Saudi Arabia.16 Due to cases of FGM being ‘imported’ into Western countries, there has been sufficient concern to also pass laws prohibiting the practice of female genital mutilation there. It has now been prohibited under U.S. federal law.17 Other countries to have passed legislation banning FGM include The United Kingdom18, Canada19, France20 and Australia.21
Despite the steps taken to outlaw the practice, there remain several countries where it has been traditionally practised that have not yet done so.22 Furthermore, even in countries where FGM is illegal, the practice is deeply imbedded in local culture and customs. Often FGM is carried out among groups in rural areas where such legislation is difficult to enforce.23
It is mistakenly believed in parts of Africa that female circumcision enhances a woman’s fertility24 and the health of the unborn child.25
Some African cultures believe that female circumcision enhances reproduction, while others see it as a means of reducing a woman’s desire for sexual intercourse. To a large extent, it is done to discourage sexual activity before marriage.26
When one examines these various reasons for the persistence of the practice, there is no escaping the conclusion that it is really carried out in order to exert control and subjugation over women.
Although most of the available literature strongly condemns the practice of FGM, it has been argued by some writers that such condemnation betrays a western bias and has been misrepresented by western scholars.27 A similar view argues also that the condemnation of FGM by western scholars and lawmakers belies a fundamental misrepresentation of the practice.28
The Actual Practice of FGM
French ethnologist Annie de Villeneuve (who witnessed such cases) cited in an important book on the subject, describes what happens to girls in Somalia when they are subjected to the more radical procedure of infibulation:
...[T]he initiation rites take place in the home among the women relatives, neighbours and friends. The father stays outside as a symbolic guard. The mother officiates, or her place is taken by an older woman. At each ceremony, only one girl is mutilated, but all girls without exception must undergo this operation before they are married. The ritual itself is not accompanied by any ceremony or medicinal preparation - it is performed similar to castrating an animal.
The little girl sits down on a stool that is not even wiped and several women hold her down firmly. After separating her outer and inner lips (labia majora and labia minora) with her finger, the old woman attaches them with large thorns onto the flesh of each thigh. With her kitchen knife the woman then pierces and slices open the hood of the clitoris and begins to cut it out. While another woman wipes off the blood with a rag, the . . . operator digs with her finger a hole the length of the clitoris to detach and pull out that organ. The little girl screams in extreme pain, but no one pays the slightest attention...
If the little girl faints, the mother blows pilipili (chili powder) into her nostrils to revive her...
[T]his is not the end of the torture. The most important part of the ritual begins only now. After a short moment the woman takes the knife again and cuts off the inner lips (labia minora). The helper again wipes the blood with her rag. Then the mother with a swift motion begins to scrape off the skin from the inside of the large lips...
With the abrasion of the skin completed according to the rules, the woman closes the bleeding large lips and fixes them together with large acacia thorns.
At this stage of the operation the child is spent and exhausted and generally stops crying but usually has convulsions. One then forces down her throat a concoction of plants.
The operator’s chief concern is to achieve as narrow an opening as possible, just enough to allow the urine and the future menstrual flow to pass. A small splinter of wood is usually inserted to keep the wound from closing entirely. The honor of the operator depends on making the opening as small as possible, because among the Somalis the smaller this artificial passage is, the higher the value of the girl. (She is traded by her father, usually for goats, as soon as she starts menstruating...)
Once the operation is finished, the mother washes the sex area of the girl and wipes her with a rag. The girl is freed and ordered to get up. The neighbours . . . help to immobilise her thighs with ropes of goat skin. A solid bandage is then applied from [the girl’s] knees to [her] belt line [and] is left in place for about two weeks. the girl must remain immobile stretched on a mat for the entire time while all the excrement evidently remains with her in the bandage.
After that, the girl is released and the bandage is cleaned. Her sex organs are closed artificially and this is preserved until her marriage. Contrary to what one would assume, death is not a very frequent result of this operation. One does, of course, deplore the various complications which frequently leave the girl crippled and disabled for the rest of their lives.29
The "procedure" is carried out on new born infants, as well as on children and on young women who have already reached puberty and poses a manifest risk to their health and well-being.
In addition to the "infibulation" procedure described above, the other two methods of mutilation include "excision" or clitoridectomy, which involves the surgical removal of the clitoris and often, other parts of the external genitalia including the labia minora.30 The least severe method of mutilation, known as "Sunna circumcision" involves the removal of the clitoral prepuce only.31
Given that these types of female genital mutilation are commonly done by non medical personnel operating in rural surroundings, under unhygienic conditions, and using primitive tools, the procedure carries a high degree of risk to the comfort or safety of the "patient".
The effects of this procedure are both immediately traumatic as well as dangerous. First of all, the woman who is subjected to FGM undergoes a high degree of pain and suffering. In addition, there is the immediate danger to her health from uncontrolled bleeding and from shock.
The long term effects of FGM include unspecified psychological effects from the trauma. In addition, the woman who has undergone FGM will likely suffer from pain and discomfort during sex as well as an increase danger to her health due to the genital tissue having been severely scarred as a result of the procedure.32 Other long term effects also include greater vulnerability to infection and urine retention.33 The tissue damage to the genitalia also result in increased suffering and risk during child birth.34
Reasons that FGM is Morally Wrong
It is argued here that there are indeed universal standards when it comes to the way people ought to be treated where their health and well-being are concerned, and that all human beings have certain rights which include a right to be free from torture and a right to ones own sexuality. Article 7 of the International Covenant on Civil and Political Rights States that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without (her) free consent to medical or scientific experimentation.35
Although it is admitted that certain practices exist in different parts of the world including scarring, ear piercing and tattooing, the initial trauma and the lasting and debilitating effects of FGM differentiate it from those other procedures. The reason that FGM is wrong is not that it is a culturally divergent practice, but that it is done without the consent of most of those who are subjected to it and since it is generally done to children, no consent can be properly given, Furthermore, it causes considerable physical suffering and lasting harm.
The practice of female genital mutilation is a threat not just to woman’s rights but to human rights. It cannot be equated with other culturally specific practices, such as applying war paint or inflicting scars on ones body as a mark of coming of age. This practice amounts to a violation, not because it is culturally distinct, but because it is an assault carried out on victims who are unable, because of their tender age, or unwilling because of pressure from society to object.
FGM is an inherently dangerous procedure carried out in circumstances conducive to immediately drastic consequences and leading to permanent disability, pain and psychological trauma. In the "UNHCR Sexual Violence against Refugees; Guidelines on Prevention and Response" the document, which considers FGM to be a form of sexual violence states:
"Where women and girls have undergone extreme forms of female genital mutilation, they may suffer extensive injuries if their genitalia are reopened by a sharp instrument or by the force of penetration itself."36
FGM remains a serious threat to girls and women, because it is done extensively, posing severe trauma and health risks to millions of individuals in many parts of the world. Furthermore, it is being done to girls and women who are in social and economic groups which seldom have had a voice to speak for themselves.
The United Nations Convention on the Elimination of All Forms of Discrimination Against Women sets out practices which have been agreed to be harmful to women. Article 5 (a) of the Convention states that signatory states shall, work towards,
"the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women".37
Despite claims about a western bias or cultural imperialism, the practice of FGM essentially amounts to the use of violence against girls and women and the issue should be viewed in the context of the wider forms of social injustice against women.
Recent trends in refugee policy have certainly reflected the urgency of this issue. In 1996, the Australian Government’s "Guidelines on Gender Issues for Decision Makers" stated that FGM "may be classified as persecution and give rise to refugee status".38 In addition, the French Refugee Appeals Commission has come to the same conclusion, that the threat of FGM may be grounds for a claim for recognition as a refugee.39
Elizabeth’s Case
The case at issue involves Elizabeth Kuma, a national of Ghana and member of the Ewe tribe, who along with her son and daughter, arrived in Hong Kong in 1996 and sought temporary asylum there. The basis for her claim was that Elizabeth had a real fear that her daughter (age 3) would be subjected to female genital mutilation in her own country at the insistence of her husband’s family.
Elizabeth’s husband, Stephen Boateng, was an Ashanti Muslim, of the Wala tribe who had come from the State of Wa, in northern Ghana. The couple had married in 1988 and lived in the town of Kumasi. Stephen was a school teacher, and Elizabeth supplemented the family income by working in a beauty shop. The marriage had gone well enough until February 1996 when Stephen’s mother who had a great deal of influence in the family, told her son that his daughter would be "circumcised".
Elizabeth had heard from other women in her community about the harmful effects that FGM could have, and had known another mother who’s child had died during the procedure. She told her husband that she was opposed to it. When Elizabeth objected to her husband and in-laws, about whether her daughter should be circumcised, they had a fight and her husband beat her. Stephen’s mother claimed that this same ritual had been carried out on all of her own daughters and that it was necessary for Elizabeth’s child as well. In addition, Elizabeth’s sisters-in-law all insisted that female genital mutilation be carried out on their own daughters, because they claimed that it was "the law" for them to do so. It was clear then, that there was heavy pressure for Elizabeth to allow her daughter to be subjected to this ritual.
Although FGM was formally restricted by legislation in Ghana in 1994, Elizabeth had never heard of any such law being enforced. Because of a deep reluctance by the authorities in Ghana to intervene in family matters, Elizabeth never considered going to the police for protection.
Elizabeth, fearing for the safety of her daughter, obtained a passport for herself and the two children. She was able to buy excursion tickets to Cairo for herself, her daughter and her son (age 5) with money which she had saved from her hairdressing business. Elizabeth and the children stayed with friends in Egypt for three months, until her husband followed her to Cairo on a tip-off from one of her acquaintances and found them there. He confronted her and ordered Elizabeth to return to Ghana. When she objected, he again beat her and threatened to kill her if she did not return to Ghana or hand the children over to him.
While Elizabeth was in Cairo, she had been befriended by a group of Egyptian Christians who provided some assistance to her. She paid a man named Kamal, US$3000 for Netherlands passports for herself and the children and air tickets to Canada via Hong Kong. She arrived at Kai Tak Airport in Hong Kong on 25 May 1996 and was allowed to enter the territory. Four days later when at the airport on their way to Canada, she and the children were challenged over the passports as they were passing through immigration control. Elizabeth and the children were arrested, detained in Hong Kong’s Victoria Immigration Control.
Fortunately for Elizabeth and her two children, she wasn’t detained pending her removal from Hong Kong. She was given conditional release and allowed into the community under discretionary powers available to the Director of Immigration under section 36 of the Immigration Ordinance.40 The Director of Immigration then issued a removal order under section 19, 1 B (ii a) of the Immigration Ordinance on 18 September and was later delayed to 25 September).41
During this time, she sought assistance from the Vicar of an Anglican church, who directed her to a firm of solicitors who were willing to take up her case. Elizabeth managed to secure the assistance of legal counsel on 23 September. At that point, she was able to tell her story and begin the process of making a submission to the United Nations High Commission for Refugees.
In her submission to the United Nations High Commission for Refugees Hong Kong office, Elizabeth cited the case of Khadra Hassan Farah.42 In this case, the Canadian Immigration and Refugee Board found that Khadra Hassan Farah, a Somali national ought to be granted refugee status on the grounds that her daughter a ten year old, would be subjected to mutilation if she were forced to return to Africa. In her written submission to the Canadian Immigration Review Board, Khandra Hassan Farah describes in some detail the procedure that was done to her at the age of eight, which was startlingly similar to the account cited above by Annie de Villeneuve.43
In a United States decision, Fauzia Kasinga before the Board of Immigration Appeals,44 the Immigration Board making a binding decision, found that fear of being subjected to FGM can be the basis for a claim to refugee status. It also found that women of the Tchamba-Kunsuntu tribe of Northern Togo (to which Fauziya Kasinga belonged) who oppose the practice can be considered as being members of a "particular social group" within the definition of a refugee under the Immigration and Nationality Act (8 U.S.C.1101 (a) (42) (A)).45 Finally, the Board held that it was reasonable for Fauzia to fear being subjected to FGM countrywide as a result of being a member of that social group.
Fauzia who was born in northern Togo, had been protected from being circumcised as a child by her father. Following her father’s death however, she was taken out of the custody of her mother, and sent to the family of her father’s sister. Her aunt forced her into a polygamous marriage at age 17, to an older man who as part of the arrangement, had insisted that she be subjected to FGM.
Fauzia managed to escape first to Germany in December 1994 where she stayed briefly with a German woman. While in Germany, she met a Nigerian man who offered to sell her his sister’s British passport. Since Fauzia had relatives in the United States, she decided to try and join them there. Fauzia arrived in the U.S. on 17 December 1994. She did not try to enter the country illegally, but promptly applied for asylum upon arrival. She was arrested upon her arrival because of the false documents and spent 17 months in detention.
The Immigration Judge to hear her case denied her claim, based on the applicant’s lack of "rationality," "persuasiveness", and "consistency".46
Fauzia then took her case to the Board of Immigration Appeals and was ultimately granted asylum in June 1996.47
The Board, in its decision, ruled that FGM can be the basis for a claim of persecution. It further stated here that persecution can consist of harm or suffering inflicted by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.48
In her own submission made in September 1996, Elizabeth Kuma, also claimed protection under the United Nations Convention on the Rights of the Child,49 which was extended to Hong Kong by the United Kingdom (the then protection power) in September 1994. The Convention in Article 24 (3) states that:
State Parties shall take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children.50
Elizabeth further argued that FGM has been accepted in the decided cases cited above as persecution. She based this on the well founded fear that her daughter would be subjected to FGM upon her return to Ghana.
Elizabeth was interviewed at length by a protection officer from the UNHCR’s Hong Kong office in late October and again in early November, 1996. Elizabeth’s account was found to be credible, and in light of the fact that her husband belonged to a tribe that still practices FGM, and the fact that it would not be realistic to expect her to return to her native country where there was an absence of state protection, she was finally recognised on November 19 1996 as being a refugee, entitled to temporary protection in Hong Kong. The UNHCR decision was based on Elizabeth and her daughter being members of a particular social group within the meaning of Article 1 A, (2) of the Convention Relating to Refugees.51
The UNHCR is not obligated to provide reasons for its decisions, as in the cases discussed above. Indeed, this lack of transparency and accountability on the part of the UNHCR is of considerable concern to those who provide advocacy on behalf of asylum seekers and refugees.
Paragraph 77 of the UNHCR Handbook states that " ‘a particular social group’ " normally comprises persons of similar background, habits or social status"52 Paragraph 79 of the Handbook goes on to state:
"Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution."53
It would seem that in this case, the fear of having one’s self or one’s daughter subjected to FGM would seem to have being considered as a "special circumstance" for the purposes of the UNHCR.
A memorandum drafted in Geneva and directed to the Hong Kong office from internal UNHCR guidelines used in determining this case states that:
"The UNHCR’s Executive Committee has acknowledged that gender can be a factor in persecution on the basis of one of the five listed categories, and, moreover, that women in certain circumstances be considered to constitute a "particular social group".54
The (UNHCR) Executive Committee, in Conclusion No. 39 on Refugee Women and International Protection (1985) recognised that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhumane treatment due to their having transgressed the social mores of the society in which they live may be considered a "particular social group" within the meaning of Article 1 A(2) of the Convention."55
That same memorandum goes on to cite paragraph 56 of the UNHCR Guidelines on the Protection of Refugee Women (1991)56 which indicates that a woman’s claim to refugee status may arise from severe gender based discrimination that amounts to "persecution for transgressing social mores."57 The memo also states:
"In cases where FGM is an accepted and compulsory practice, women who refuse to undergo it or have their children undergo it may be considered to have transgressed social mores and, depending on the particular circumstances, their treatment as a result may amount to persecution."58
The UNHCR memo concludes that, "a woman can be considered to be a refugee if she or her daughters/dependants fear being compelled to undergo FGM against their will; or if she fears persecution for refusing to undergo or allow her daughters to undergo the practice".59
It is interesting to note here that the same memo states:
"No women have been resettled through this office as the result of a fear of FGM."60
In addition to the grounds found in the United Nations Convention on the Rights of the Child cited above, Article 3 of The Universal Declaration of Human Rights states that:
"Everyone has the right to life, liberty and security of person."61
Article 5, of the Universal Declaration prohibits, "cruel, inhumane or degrading treatment."62
Finally, Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment and Punishment requires that the State party to the Convention act to prevent such "cruel, inhumane or degrading treatment."63
The decision to recognise Elizabeth and her child as persons with a well founded fear of persecution ought to be based in part on the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, Article 2, (d)
"To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation."64
and Article 5, (a).
"To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."65
The decision by the UNHCR to recognise Elizabeth’s claim to refugee status is also supported by a 1994 letter by the United Nations High Commissioner to the British Refugee Legal Centre which states that:
"FGM, which causes severe pain as well as permanent physical harm, amounts to a violation of human rights, including the rights of the child, and can be regarded as persecution. The toleration of these acts by the authorities, or the unwillingness of the authorities to provide protection against them, amounts to official acquiescence. Therefore a women can be considered a refugee if she or her daughter/daughters fear being compelled to undergo or allow her daughters to undergo the practice."66
Following the decision, the UNHCR made a request to the Hong Kong Immigration Department that she and her two children should be granted temporary asylum in the territory. However, Elizabeth and her children were compelled to report to the Recognizance Office at Victoria Prison every two weeks, as a removal order continued in force against them during the remainder of their stay in Hong Kong. In September 1997, Elizabeth and her children were finally resettled in a third country where they currently live.
The implications of this case are significant. First, the High Commissioner has put into practice the 1994 decision (stated above) to take meaningful steps to help bring this practice to an end. It has done this by offering protection to women and their children who are threatened by FGM. Second, this decision sends a clear signal to countries where FGM is still being carried out. By treating FGM as a form of persecution, the UNHCR and the international community are condemning the practice not just with words, but with action. Finally, through the courage and conviction of women like Elizabeth Kuma, Fauzia Kasinga and Khadra Hassan Farah, women are beginning to speak out in order to protect themselves and their children. Their message of opposition to female genital mutilation is now being heard by their own governments and by the international community.
1 189 U.N.T.S 137, art. 1 (a)(2) (1957) ("Geneva Convention").
2 This article refers to the practice as female genital mutilation (FGM) for the sake of clarity.
3 UNICEF, 2 Million Girls a Year Mutilated, The Progress of Nations: Women 1996 (visited Dec. 19,1997) 1996. <http://www.unicef.org/pon96/womfgm.html>.
4 Shannon Brownlee et. al., In the Name of Ritual. U.S. News and World Report, Feb. 7, 1994, at 56-57. Ann Balser Moussette, Female Genital Mutilation and Refugee Status in the United States - a Step in the Right Direction Kris, 19 B.C. Int’l & Comp. L. Rev. 356 (1996).
5 Toni Nelson, Violence Against Women, 9 World Watch 33-38 (1996).
6 Because the practice seems to be carried out on women in many predominantly Moslem countries (especially in Africa and the Middle East) it has been linked to Islam. Although there is evidence that female circumcision was carried out on women in pre-Islamic times, there are arguments made by Islamic scholars in favor of the practice. Sami A. Aldeeb Abu-Sahlieh, Hoffyfeld, To Mutilate in the Name of Jehovah or Allah, Legitimization of Male and Female Circumcision, (visited Feb. 11, 1998) <http://www.hollyfeld.org/fgm/refer/mutilate.html> indicates that although the Koran does not explicitly mention female circumcision, the Sunnah, which is taken as a source for interpreting Islamic law and practice, does refer to it, indicating that since it, (female circumcision) is not forbidden it is allowed, and that it may be done to a woman so that "it is more pleasant for the husband". In the Sunnah, circumcision is seen in men as a sunnah (meaning that it conforms to the tradition of Mohammed himself) and a makrumah (meaning an honorable deed) for women. Although there are contrary positions held by Islamic clerics and scholars, there is a widely held position that the practice is consistent with Islamic practice.
7 J.A. Black & G.D. Debelle, Female Mutilation in Britain, 310 Brit. Med. J. 1590 (1995).
8 Uchechukwu O Ezeh., 701 Brit. Med. J. 21 (1995).
9 Supra note 6.
10 Supra note 5, at 33-38.
11 Cesar Chelala, Egypt Takes Decisive Stance Against Female Genital Mutilation, 351 Lancet 120 (1998).
12 Egypt Court Backs Ban On Female Circumcision, International Herald Tribune, Dec. 30, 1997, at __.
13 Supra note 5, at 33-38.
14 Supra note 6.
15 According to those who have done research on the subject, although legislation has been passed in the jurisdictions, referred to, the practice remains widespread. Hollyfeld, FGM Research Home page, Legislation Index, The Laws of some African Countries (visited Feb. 11, 1999) <http:// www.hollyfeld.org/fgm/legisl/interntl/africa.html>.
16 Supra note 7, at 1590.
17 Kate Chalkley, Female Genital Mutilation: New Laws, Programs Try to End Practice, 25 Population Today 4-5, (1997).
18 Prohibition of Female Circumcision Act 1985 (c 38).
19 R.S.C. 1985, c. c 46, s. 268.
20 Penal Code, Article 312 .
21 E.g. Crimes Act 1990 (NSW).
22 It is reported that FGM (excision) is practiced in all parts of Benin, Chad, and the northern parts of the Democratic Republic of Congo with no law enacted which specifically prohibits the practice. The practice of infibulation is also carried out in Eritrea and Ethiopia, with no law in place to prohibit it. Amnesty International Online, Female Genital Mutilation, sec. 9, (visited on Feb. 25, 1998) <http://www.amnesty.org/ailib/intcam/femgen/fgm9.htm>.
23 Here, see the case of Elizabeth Kuma, (unreported) which is referred to in this paper below.
24 Note, Anonymous, What’s Culture Got to Do with It? Excising the Harmful Tradition of Female Circumcision, 106(8) Harv. L. Rev., 1950-51 (1993).
25 Ifeyinwa Iweriebor, Brief Reflections on Clitorodectomy, H- Net Humanities & Social Sciences Online (visited on Feb. 11, 1998) <http://h-net2.msu.edu/-africa/sources/clitorodectomy.html>.
26 Aisha Samad Matias, Female Circumcision in Africa, H-Net Humanities & Social Sciences Online (visited on Feb. 11, 1998) <http://h-net2.msu.edu/-africa/sources/clitorodectomy.html>; see also supra note 24, at 1953-53.
27 Here, the author argues that labeling the practice as a form of gender oppression of child abuse is a misrepresentation of the culture of other peoples. His claim here is that the practice is done in good faith for the best of reasons such as a means of increasing fertility or in order to protect one from "would-be seducers and rapists". Supra note 25.
28 Adeline Apena, Female Circumcision in Africa and the Problem of Cross Cultural Perspectives, H-Net Humanities & Social Sciences Online, Discussion of Female Circumcision (Visited on Feb. 11, 1998) <http://h-net2.msu.edu/-africa/sources/clitorodectomy.html>.
29 Tobe Levin, "Unspeakable Atrocities": The Psycho-Sexual Etiology of Female Genital Mutilation, 1-2 The Journal of Mind and Behaviour Autumn 197-98 (1980) (quoting Annie de Villeneuve’s eyewitness account of what actually does happen to women and girls).
30 Valerie Oosterveld, Refugee Status for Female Genital Circumcision Fugitives: Building a Canadian Precedent, 51 U. Toranto L.J. (1993). <http://www.law-lib.utoronto.ca/law-review/utlr51-2/oosterv.htm> (visited on Feb. 11, 1998).
31 Id.
32 Supra note 24, at 1944-45.
33 Id. at 1948.
34 Id. at 1945-46.
35 International Covenant on Civil and Political Rights, 999 U.N.T.S. 175 (1976).
36 UNHCR, Sexual Violence against Refugees: Guidelines on Prevention and Response, 7 Int’l J. Refugee L. 727 (1995).
37 United Nations Convention on the Elimination of All Forms of Discrimination Against Women, (1979) 19 I.L.M. 33, art. 5(a) (1979-1980).
38 Heaven Crawley, Women as Asylum Seekers - A Legal Handbook, Immigration Law Practitioners’ Association and Refugee Action, 71 (1997).
39 Id.
40 Immigration Ordinance (CAP 115) Recognizance as Alternative to Detention sec. 36.
41 Id. at sec. 19, 1B (iia).
42 Khandra Hassan Farah, 13 July 1994, IRB Refugee Division. (Toronto) T93-12199 and 12197.
43 Kris Ann Balser Moussette, Female Genital Mutilation and Refugee Status in The United States - a Step in the Right Direction, B.C. Int’l & Comp. L. Rev., 356-357 (1996).. Moussette quotes the experience of Khandra Hassan Farah, which was included in her submission to the Canadian Immigration Refugee Board.
…One afternoon, a group of women, including my mother and aunts, gathered at our house so that they could circumcise me and my cousin…. I was told that it is a common thing and that it would enhance my chances of getting married to a good man. They took me to an empty room and tying (sic) my arms behind my back. Two pairs of women grabbed my legs and spread them wide open. They held my legs very tight so that I would not be able to move them. Then, another lady started to get a new blade and took the cover off it.
She inserted her fingers into my inside to search for my clitoris and started to pull it out, and I felt the pain and started to scream. She cut off my clitoris with the blade and I started to scream more and more. This did not deter her nor did it make her stop cutting my body any further. She continued slicing away my labia minor at that point, I lost consciousness. Subsequently, she scrapped raw the wall of my vulva so that I would have barely sufficient means to expel my bodily wastes. I woke up in the middle of the night and realised that my legs were tied together to restrain me from any movement. I also saw my cousin lying next to me with her legs also tied together. We were not allowed to urinate for two days and we were not given liquids to drink. My legs were left tied together for ten days after which time I started to walk again with great difficulty and much pain. Even though this event took place over twenty years ago, I can still easily visualise the scene and feel the pain and trauma all over again when I start to talk about it.
44 In re Fauziya Kasinga, 1996 WL 379826 (Board of Immigration Appeals, June 13, 1996).
45 Linda A. Malone & Gillian Wood, In Re Kasinga, 91 Am. J. Int’l L., 140-47 (1997).
46 Supra note 44, at ___.
47 Id.
48 Id.
49 United Nations Convention on the Rights of the Child, A/RES/44/25,20 (1989); 28 I.L.M. 1448 (1989).
50 Id. at art. 24(3).
51 Supra note 1.
52 Office of the United Nations High Commissioner for Refugees Geneva, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees 19 (1979).
53 Id.
54 This text refers to a UNHCR internal memorandum pertaining to the case of Elizabeth Kuma. The document consists of five pages of text setting out the UNHCR position of FGM based on Conclusions by the UNHCR Executive Committee, and the UNHCR Guidelines on the Protection of Refugee Women Office of the United Nations High Commission for Refugees, Geneva (1991) .
55 Isabelle Daoust & Kristina Folkelius, UNHCR Symposium on Gender-Based Persecution, 8 Int’l J. Refugee L. 180 (1996).
56 UNHCR Guidelines on the Protection of Refugee Women, Office of the United Nations High Commission for Refugees, Geneva para. 56 (1991).
57 Id.
58 Id.
59 Id.
60 Id.
61 Universal Declaration on Human Rights, (1948) art. 3, G.A. Res. 217A (III), GAOR, 3rd Sess., Part I, Res., at 71.
62 Id. at art. 3.
63 United Nations Convention against Torture and Other Cruel, Inhumane and Degrading Punishment, 23 I.L.M. 1027 art. 16 (1984).
64 United Nations Convention on the Elimination of All Forms of Discrimination Against Women, 19 I.L.M. 33, art. 2(d) (1980).
65 Id. at art. 5(a).
66 Supra note 38, at 71.
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