Johanna Westeson - The ICHRP

and Akaziebie v. Sweden, 607 the applicants were mother and daughter, nationals of Nigeria
who had sought asylum in Sweden. The issue was whether Sweden would violate its
obligations under Article 3 of the Convention by returning the applicants to Nigeria, where
they claimed that they ran the risk of being subjected to FGM. The Court found the
application manifestly unfounded, as the applicants failed to demonstrate that they would
face a real and concrete risk of being subjected to FGM upon return. Nevertheless, the
Court took the opportunity to express its general stance on FGM as a practice in violation
of Article 3:
It is not in dispute that subjecting a woman to female genital mutilation amounts to illtreatment
contrary to Article 3 of the Convention. Nor is it in dispute that women in Nigeria
have traditionally been subjected to FGM and to some extent still are. (para 12)
3. European Union
Issues related to FGM fall outside of the scope of binding EU law.
4. Regional non-binding material
There are multiple statements from both the Parliamentary Assembly of the Council of
Europe and the European Parliament, strongly condemning the practice of FGM. In these
declarations, member states are encouraged to either describe FGM as torture or as a
“fundamental violation of human rights,” and to take strong measures – primarily by the
means of criminal law – to combat the practice. They consistently describe FGM as a
practice where consent will not exempt the practitioner from criminal liability, not even
when performed on adult women. 608
5. Domestic legislation and case law
Domestically, legislation in most European countries subjects those who perform FGM to
heavy penalties under criminal law provisions. An increasing number of European
countries have laws especially prohibiting FGM. In other countries, FGM can be
prosecuted under existing criminal law provisions on assault. Laws differ as to, inter alia,
whether the prohibition of FGM has extraterritorial application, and as to what degree
health care and child care providers have a duty to report suspected FGM regardless of
policies on confidentiality. 609
Norway has one of the strongest anti-FGM legislations in Europe. According to the Act N°
74 of 15 December 1995 on the prohibition of genital mutilation, 610 anybody who
intentionally performs an operation on a woman’s genital organs that damages or
607 Application no. 23944/05, Admissibility decision, decided on 8 March 2007.
608 See, for example, Council of Europe Parliamentary Assembly Recommendation 1371 (1998) on abuse and
neglect of children (Adopted on 23 April 1998), Resolution 1247 (2001) on female genital mutilation
(adopted 22 May 2001) and Resolution 1662 (2009): Action to combat gender-based human rights violations,
including abduction of women and girls (adopted on 28 April 2009), Council of Europe Recommendation
Rec(2002)5 of the Committee of Ministers to member States on the protection of women against violence
(adopted on 30 April 2002), and EU European Parliament resolution of 24 March 2009 on combating female
genital mutilation in the EU (2008/2071(INI)).
609 For an analysis of the implementation of FGM laws in the EU countries, see Els Leye et al, “An analysis
of the implementation of laws with regard to female genital mutilation in Europe,” Crime Law Soc Change
(2007) 47:1-31.
610 LAW-1995-12-15-74, as amended. Unofficial translation to English available.
200