Protection afforded to asylum seekers on Female Genital Mutilation/Cutting related grounds: a review of the theory and practice of Europe Alina Daniela Balta October 2014 LL.M International and European Public Law MSc Victimology and Criminal Justice Tilburg Law School Tilburg University Master’s Thesis supervisors: Annemarie Middelburg (Tilburg University) : Nicola Jägers (Tilburg University) Abstract The present study thoroughly investigates the practice of Female Genital Mutilation/Cutting (FGM/C) as related to the rights to asylum and explores how women and girls, fleeing their home countries out of FGM/C related fear, can receive protection in Europe and what are the challenges they have to face during this process. The study aims to put forward a comprehensive overview of the level of protection afforded to asylum seekers on FGM/C related grounds in Europe. To this end, the study highlights that FGM/C is a human rights violation that can give rise to refugee status and constructs the legal and policy asylum framework applicable to FGM/C related cases in Europe. In addition, it establishes that the legal and policy asylum framework is lacking a harmonized approach to FGM/C and asylum throughout Europe, gender specific sensitivity and it is not mindful of the special needs of vulnerable groups. Moreover, the research explores the case-law regarding asylum on grounds of FGM/C, available at the European Court of Human Rights (ECtHR) level, and concludes that the ECtHR is reluctant to offer protection to asylum seekers on FGM/C related grounds. In addition, the analysis of the case-law unveils that the ECtHR is turning a blind eye to paramount issues accompanying FGM/C related cases such as, inter alia, cultural and gender dimensions or the psychological harm and its impact visited upon potential or actual victims of FGM/C. The study concludes that there are numerous challenges asylum seekers on grounds of FGM/C have to overcome in order receive protection in Europe. Even after great advancements in acknowledging that protection can be born of FGM/C related claims, the European system, both at conceptual and practical levels, is systematically failing to tackle the particularities related to asylum on grounds of FGM/C. 2 List of Abbreviations CAT Convention against Torture CoE Council of Europe COI Country of origin Information DHS Demographic Health Survey ECHR European Convention on Human Rights ECOSOC Economic and Social Council ECtHR European Court of Human Rights EU European Union FGM/C Female Genital Mutilation/Cutting ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IFA Internal Flight Alternative MS Member States OHCHR Office of the High Commissioner for Human Rights PSG Particular Social Group UDHR Universal Declaration of Human Rights UN United Nations UNFPA United Nations Population Fund UNHCR United Nations High Commissioner for Refugees UNICEF United Nations Children's Fund VAW Violence against Women WHO World Health Organization 3 Acknowledgements I would like to express my deep gratitude to my MSc Victimology and Criminal Justice supervisor, Annemarie Middelburg, who has guided me through this challenging process of writing a combined Master’s Thesis. She has inspired me with her passion and love for her work and provided me with guidance and encouraging support throughout this research. I would also like to manifest my special appreciation to my LL.M International and European Public Law supervisor, Nicola Jägers, for her guidance and diligence in bringing to a successful end this Master’s Thesis. I very much appreciate the time invested, concrete replies and assistance during the last months. I would also like to thank my parents and sister for all the sacrifices and love offered during my studies. Special thanks go also to my boyfriend who has been there for me and offered his shoulder unconditionally. Words cannot express how grateful I am for all your effort. Thank you very much! 4 Table of Contents Abstract List of Abbreviations Acknowledgements 1. Introduction………………………………………………………………………………….6 1.1. Problem Definition…………….…………………………………………………….......7 1.2. Statement of the Problem………………………………………………………………10 1.3. Purpose of the Study……………………………………………………………….......10 1.4. Significance of the Study………………………………………………………………10 1.5. Research Question and Sub-Questions…………………………………………….......11 1.6. Methodology……………………………………………………………………...........11 1.7. Structure of the Study…………………………….…………………………………….15 2. Background Information…………………………………………………………………..16 2.1. FGM/C: Definition, Typology and Terminology………………………………………16 2.2. Rationale for FGM/C……………….…………………………………………………..17 2.3. FGM/C and Human Rights………….………………………………………………….23 2.3.1. Cultural Relativism versus Universalism………..…………………………………23 2.3.2. FGM/C as a Human Rights violation…..……..……………………………………26 3. FGM/C and the Right to Asylum………………………………………………………….33 3.1. FGM/C as Ground for Asylum…………………………………………………………..33 3.2. Legal and policy asylum framework………...…………………….................................40 3.2.1 Council of Europe……………………………………………………………………40 3.2.2. European Union……………………………………………………………………..44 3.2.3. Discussion…………………………………………………………………………...58 4. The protection offered by the European Court of Human Rights to asylum seekers on FGM/C related grounds: case-law analysis…………………………………………………65 4. 1. The case law of the European Court of Human Rights regarding asylum on grounds of FGM/C…………………………………………………………….65 4. 2. Case-law analysis…………………………………………………………………….....73 5. European Court of Human Rights decisions………………………..................................75 5.1. The Reason……………………………………………………………………...............75 5.2. The Proposed Solution………………………………………………………………….81 6. Conclusion………………………………………………………………………….............86 Bibliography………………………………………………………………………………….90 Annex……………………………………………………………………………………….104 5 1. Introduction “I’ve heard that during the procedure [of FGM], four women spread your legs wide apart and hold you downso that you can’t move. Andthen, theeldest womantakes a knife that is used to cut hair and scrapes your women parts off. There are no painkillers, no anesthesia. The knife is not sterilized. […] This would have happen to me if I stayed in Togo. It happensto girlsall overthe world. But with the help of my mother I ran away, for from my home, family andcountry. EventuallyI madeit to America where I thought I’d be taken in, where I thought I would be safe. But instead of finding safety, I’d found a jail cell – or actually a series of cells. I had been beaten, teargased, kept in isolation until I nearly lost my mind, trussed up in chains like a dangerous animal, strip-searched repeatedly and forced to live with criminals, even murderers.” The opening quote reveals the story1 of Fauziya Kassinga, a girl born in Togo, under the umbrella of a protecting father and loving family. After the death of her father, the only one who was able to protect her against undergoing kakia or female genital mutilation/cutting, her life and future crumbled before her eyes. Under tribal law her father’s brother became Fauziya’s legal guardian and her father’s sister took over her father’s house and business. Fauziya became their property and at the age of 17 she was sold into a polygamous marriage with a forty-year old man, husband of three other women. Moreover, the requirement to enter a marriage with this man was to be subjected to FGM/C. Fauziya had all her future ahead; she was not interested into marriage, even less under these circumstances and she was fond of studying and passionate about languages. Therefore, she embarked herself upon the adventure that was about to change her entire life - with the help of her mother and sister she fled Togo. After flying to Germany and realizing that she would like to continue her studies in an English- speaking country, where she had relatives, she arrived in America. In a hope that America would make her justice and protect her against FGM/C, her father’s family and the new husband, she applied for asylum, on grounds of a well-established fear of persecution – she would have to undergo FGM/C if returned in Togo. However, once arrived in the U.S. she was imprisoned, suffered inhumane and degrading treatment at the hands of American authorities and passed through multiple forms of victimization. She was denied her human existence by being held in tremendous life conditions and treated like a fearful criminal. After the exceptional work of her legal team and one year and a half spent in several prisons, she was released and granted asylum on grounds of FGM/C. It was the first case of this kind in the U.S. 1 F. Kassindja, L. M. Bashir, “Do they hear you when you cry?”, Delta Trade Paperbacks, 1999. 6 and a breakthrough for gender-based crimes as it was established as a precedent-setting and granted legally binding force upon immigration Judges. This striking story underlines the elements of gender-specific discrimination women from FGM/C practicing communities face due to the hardship they encounter because they are women (i.e. women are sold in marriages and become the property of their husbands), the fear of being subjected to FGM/C and challenges caused by the way the Immigration Authorities handled the case (i.e. her cased was dismissed in the first instance as lacking credibility). Fauziya’s story had a happy ending, but it is not just an unfortunate occurrence. It is a reality thousands of girls are daily facing. 1.1. Problem definition FGM/C is an increasingly widespread concern for the International Community and Human Rights supporters. On one hand, FGM/C is a practice still common even in the 21st century, which affects any human precept due to the amount of human rights violations it brings along. Globally, there are approximately 100 to 140 million women and girls that have undergone FGM/C2 and it is assumed that every year around 3 million girls run the risk of being subjected to this practice.3 If there is no reduction in the practice by 2050, it is estimated4 that the number of cut girls will grow up to 6.6 million. On the other hand, it is worrying the number of victims of FGM/C that are encountered yearly among immigrants fleeing their country and looking for protection in countries that can allegedly offer it. The sheer number of asylum female applicants in Europe was estimated by the UNHCR5 to amount to 93.350 in 2011. Of this number, around 20.000 (~20%) women and girls from FGM/C practicing countries seek asylum every year in European Countries.6 Taking this situation into consideration it can be asserted that FGM/C became an international as well as a European challenge. In the process of globalization, Europe has become an enormous melting pot of peoples, cultures, traditions, languages, customs, beliefs and rituals. While this is mainly an enriching process for the old continent as people from different corners of the world have settled in Europe, it also carries along some negative consequences. In some cases, the cultural luggage 2 WHO, Female genital mutilation, Fact sheet N°241, 2014. Last accessed on 17 October: http://www.who.int/mediacentre/factsheets/fs241/en/ 3 UNICEF, Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, 2013, p. 4. 4 UNICEF, Female Genital Mutilation/Cutting: What might the future hold?, 2014, p. 3 5 UNHCR, Too much pain: Female Genital Mutilation and Asylum in the European Union, 2013, p. 5. 6 The United Nations Refugee Agency, Female Genital Mutilation and Asylum in the European Union – A statistical overview, 2013, p. 5. 7 immigrants bring with themselves in the new country of residence encompasses their own traditions and cultural habits that are in contrast with European values.7 FGM/C is one of them. Estimations indicate that three million girls and women are subjected to FGM/C worldwide each year.8 In Europe, approximately 500.000 girls and women are suffering from the lifelong consequences of FGM/C. Every year around 20.000 women and girls from FGM/C-risk countries of origin9 seek asylum in the EU, slightly around 20% of all female applicants in 2011. Women and girl asylum-seekers originate mainly from Nigeria, Somalia, Eritrea, Guinea, and Cote d'Ivoire.10 Whether they indeed leave their home countries with the aim of escaping FGM/C or claim asylum in a European country on grounds of FGM/C and then still practice it11, there is a widespread consensus that Europe has taken action against FGM/C.12 “Europe must be very clear in defending its values which are built around justice, equality of the sexes and human rights. Therefore, we cannot tolerate that within our borders, a cultural practice becomes an excuse for the violation of fundamental human rights. Irrational traditional practices do not have a place in modern societies, especially since they are aimed at continuing to subjugate women. The global community has clearly itself to human rights and this is reflected both in conventions and international agreements.”13 The reasons why FGM/C is perpetrated vary greatly from religious and cultural considerations to preconceptions related to the anatomy of woman and safeguards of her purity.14 However, 7 Daphe, Harmful traditional practice, Daphne Booklets: Issues and experiences in combating violence against children, young people and women, 2007, p. 5. 8 OHCHR, Female Genital Mutilation: over 3 million women and girls are at risk, 2012. Last accessed on 17 October: http://www.ohchr.org/EN/NewsEvents/Pages/FemaleGenitalMutilation.aspx 9 According to the WHO, FGM/C-risk countries of origin are: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d'Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, Uganda, and Yemen. Last accessed on 17 October: http://www.who.int/reproductivehealth/topics/FGM/C/prevalence/en/ 10 Mediterranean Institute of Gender Studies, United to End Female Genital Mutilation: Basic Facts of Female Genital Mutilation, 2012. Last accessed on 17 October: http://ueFGM/C.org/AccountCourse- Basic_Facts_of_Female_Genital_Mutilation,EN.MYCOURSE.01.01,EN 11 UNHCR, Guidance note on refugee claims related to Female Genital Mutilation, Protection Policy and Legal Advice Section Division of International Protection Services, 2009, p. 15. 12 European Institute for Gender Equality, Female Genital Mutilation in the European Union and Croatia, 2013, p. 13. 13 A. Diamantopoulou, Speech on Female Genital Mutilation. What Europe should and can do. International Day against Female Genital Mutilations, European Parliament, 2000. 14 International Islamic Center for Population (Studies and Research), Female Circumcision: between the Incorrect use of Science and the misunderstood doctrine, 2013, p. 13. 8 FGM/C does not have any health benefits and produces irreversible health consequences.15 It impacts both physical and psychological state of health, notwithstanding the discriminatory effects on grounds of sex. Against this background, actual or potential victims of FGM/C, coming from FGM/C practicing countries, where the practice is deeply rooted within culture, tradition or perceived as a social norm16 try to seek relief in Europe. They flee their home countries trying to escape FGM/C and hoping to find protection abroad but during the process they encounter legal barriers. In 1994, the United Nations High Commission for Refugees (UNHCR) issued a statement according to which a woman could be considered a refugee17 if she or her daughter (or daughters) feared being subjected to FGM/C in their country of origin, or thought that that they would face persecution if they refuse to obey the practice, a stance that the European Commission also supported.18 A woman or girl who has already undergone the practice before she seeks asylum, may still be considered refugee on the basis of the well-founded fear of persecution induced by the permanent and irreversible nature of FGM/C and its deeply traumatic consequences that render the return to the country of origin intolerable.19 The well- founded fear can also be established in a situation when a person, already subjected to FGM/C in her youth, is later pressured to undergo a re-excision or re-infibulation. This situation occurs when the first procedure is considered not to be complete.20 Therefore, both the potential victims of FGM/C and the actual victims that underwent FGM/C can be granted refugee status on the basis of well-founded fear of FGM/C. Nevertheless, the number of women that were granted asylum on FGM/C related grounds is rather limited.21 Moreover, throughout Europe a non-harmonized approach to granting protection has been indentified22: in some states23 asylum was granted while in other24 asylum was not granted on FGM/C-related grounds. 15 WHO, Female genital mutilation, Fact sheet N°241, 2014. Last accessed on 17 October: http://www.who.int/mediacentre/factsheets/fs241/en/ 16 UNICEF, Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, 2013, p. 14. 17 As defined under the 1951 Refugees Convention, art. 1, para. 2., the term “refugee” shall apply to any person who has a “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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” 18 European Commission, Communication towards the Elimination of Female Genital Mutilation, 2013, p. 10. 19 Parliamentary Assembly of the Council of Europe, Report on Gender-related claims for asylum, 2010, p. 12. 20 UNHCR, Too Much Pain: Female Genital Mutilation & Asylum in the European Union - A Statistical Overview, 2013, p. 2. 21M. Miller, Responses to Female Genital Mutilation/ Cutting in Europe, Innocenti Research Centre, 2004, p. 5. 22 European Institute for Gender Equality, Female Genital Mutilation in the European Union and Croatia, 2013, p. 47. 23 Austria, Belgium, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, the Netherlands, Romania, Slovakia, Sweden and the UK. 24 Bulgaria, Croatia, Cyprus, Czech- Republic, Denmark, Estonia, Finland, Greece, Luxembourg, Malta, Poland, Portugal, Slovenia and Spain. 9 1.2. Statement of the problem As previously stated, data illustrate an increased migration towards Europe due to FGM/C and also a sheer number of asylum applications coming from women trying to escape this practice. While the practice of FGM/C is widely documented, as well as the asylum policies and laws in Europe, there is a gap of knowledge regarding a link between FGM/C and Asylum and the extent of protection afforded to actual and potential victims of FGM/C. This research will address this specific gap of knowledge by identifying and analyzing the asylum policies and laws applicable to FGM/C in Europe as well as the existing case-law at the ECtHR level, with regard to FGM/C and asylum. 1.3. Purpose of the study The purpose of the research is three-fold: 1) to conduct a qualitative study on FGM/C and the right to asylum in Europe by reviewing the existing literature and studies; 2) to compile a new body of insightful information that will increase the general knowledge on FGM/C in relation to the right to asylum in Europe; 3) to stimulate academic debate on this topic. 1.4. Significance of the study The study itself is a rich body of information, that encompasses a clear-cut and comprehensive description of FGM/C, the human rights that are being violated by the practice, how FGM/C can constitute a ground for asylum, what is the asylum framework applicable to FGM/C, how the right to asylum is safeguarded in practice and what are challenges in receiving protection. The target audience of this research is composed by novices and experienced researchers as well as practitioners and policymakers in the field of FGM/C and the right to asylum. The research offers, on one hand, up-to-date information and thorough assessment of the applicable asylum legislation to FGM/C as a human rights violation and, on the other hand, an in-depth analysis of case-law available at the ECtHR level concerning asylum on grounds of FGM/C. The output of the study will help to understand how protection on FGM/C related grounds is offered in Europe to asylum-seekers. 10