The Dutch approach to female genital mutilation in view of the ECHR The time for change has come

(the Netherlands), email: R.S.B.Kool@uu.nl 1 C.J.M. Schuyt, ‘Publiek recht in een multiculturele samenleving’ (‘Public Law in a Multi-cultural Society’), in: Nederlandse Juristen Vereniging (Dutch Lawyers Association), Multiculturaliteit en Recht (Multiculturalism and the Law), 2008, pp. 63-125. 2 It is of importance to note that FGM is also rejected in the mother countries. Some mother countries have subjected it to criminal sanctions, but these are not always enforced, e.g. the African Charter on Human and Peoples Rights, June 27, 1981, p. 21. Also: UN, General Assembly, RES./34/180, 18 December 1979, Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of Women and Children, <http://www.unhcr.ch/html.menu6/2/fs23.htm>. 3 Recently a Dutch native of Moroccan origin was arrested on suspicion of having FGM performed on his 5-year old daughter. An acquittal followed; S. Kamerman, ‘Het raadsel van vrouwenbesnijdenis’ (‘The Mystery of FGM’), NRC, 14 February 2008, <http:www.nrc.nl/ binnenland/article2152320.ece>. 4 Kamerstukken II 2007-2008, 28 345, no. 65, p. 7.

The Dutch approach to female genital mutilation in view of the ECHR The time for change has come Renée Kool *

Introduction
As a result of immigration Europe is increasingly confronted with many kinds of practices from other cultures. 1This is not usually a problem, and familiarisation develops gradually over the course of time.However, in some cases a cultural practice, such as female genital mutilation (FGM), may be at odds with the standards and values felt to be fundamental by Western societies.In Europe FGM is considered a punishable and harmful tradition which must be combated effectively. 2In practice, however, only France prosecutes FGM cases.Other countries have taken appropriate measures, such as the introduction of a specific criminal law section and/or a statutory duty to report, but FGM cases have not been prosecuted.
The latter also applies to the Netherlands.FGM cases have never been prosecuted in the Netherlands although it is qualified as the criminal offence of (serious) physical abuse which carries a penalty of at least three but no more than twelve years (Articles 300-303 of the Dutch Penal Code (Wetboek van Strafrecht)). 3In the last few years the Dutch Parliament has discussed this failure of criminal justice enforcement on a number of occasions, and it has urged that the policy be accentuated.An issue that remains a point of special interest is whether (a suspected case of) FGM should be reported by the (medical) welfare services to the criminal enforcement authorities, implying the introduction of a statutory duty to report or a mandatory reporting code.Taking into account the consistent resistance among medical and social authorities towards a statutory duty to report, implying legal responsibility for non-compliance, the Dutch Government rejected the first option.Instead it chose to introduce a reporting code, implying that professionals would be bound by internal rules, however leaving the decision whether or not to inform the judicial authorities ultimately in their hands. 4The question is, however, whether this is sufficient.
This issue is all the more pressing since here we are nearly always dealing with the protection of juveniles, a category which usually requires further-reaching state obligations.
In this paper I will address the issue whether or not there is a need for the introduction of a statutory report, as a prerequisite to provide adequate protection.Taking the European Convention on Human Rights (ECHR) as a starting point, an overview will be provided of the extent and nature of the state's obligations to offer protection against FGM.The Dutch policy on FGM will serve as a case study, enabling me simultaneously to provide an answer to the question of whether the Dutch policy on FGM is compatible with the standards of the ECHR.Subsequently, for the sake of comparison, an overview will be provided of the French policy on FGM.What factors qualify the French success, and what lead does this provide to improve the Dutch policy, or for that matter, the policy regarding FGM in other European countries?As will be shown below, the willingness of French (medical) social workers to pass on information to the criminal justice authorities appears to be the key element.But first of all, I will begin with a short description of FGM and its cultural background.

Forms of circumcision and cultural background
FGM is a widespread practice; its origins can be found on the African continent, in some parts of Asia (Indonesia, Malaysia) and in the Middle East (Egypt, Yemen).It is an ancient custom, which was already being practised 2,500 years ago.Although it is a relatively rare occurrence on a global scale, the number of estimated circumcisions performed annually is large enough to be considered a serious problem.The moment of circumcision varies according to the interpretation of the ritual in which it is involved.Sometimes circumcision is performed on infants; at other times it takes place at puberty, as a sign of the transition to another phase of life, or at the beginning of pregnancy, as protection of the foetus against the supposed detrimental influences of the clitoris.The form of the circumcision may also vary: 1. circumcision, meaning the removal of the foreskin or the top of the clitoris; 2. excision, implying a total removal of the clitoris as well as the labia minora, and 3. infibulation, cutting away the clitoris and both the labia minora and majora, and afterwards stitching up the labia leaving a small incision to allow the discharge of urine and blood. 5It should be remembered that such circumcisions, with the exception of surgical circumcision, are usually performed without anaesthesia in unhygienic conditions, which may be fatal for the girl or woman in question. 6Moreover, it should be clear that this concerns an irreversible form of severe physical damage, paired with psychological trauma. 7Healthy, sexually functional parts of the female body are removed without any medical indication whatsoever; restorative plastic surgery can only partially repair the damage.
The disadvantages for girls and women are evident, but what benefits are offered in exchange?Viewed from a Western vantage point, such a 'voluntary' form of mutilation cannot be easily explained. 8A number of cultural foundations can be claimed.First, the claim of religion: circumcision is said to be prescribed by the Koran or the Bible.However, such texts cannot be found in these scriptures, although they do exist in some authoritative interpretations. 9 second basis lies in the mythical belief that the female sexual organ, in particular the clitoris, has a detrimental effect on male sexuality, or even on the baby.It is self-evident that no valid foundation exists for such a belief.A third reason is the necessity to control the sexuality of the woman.Without circumcision the woman may threaten to become promiscuous and no longer be under the control of her husband.Circumcision purges the woman of her overabundant sexuality and ensures that the man is able to respond adequately to the sexual demands of his wife.This image of purity is specifically expressed by the practice of infibulation, where the (potential) wife, remains, as it were, sealed until the moment that her husband can make his rightful claim on her sex.A corollary of this is the argument that circumcision increases the beauty of the woman, but -given the horrific mutilation which results from the more severe forms of circumcision -little significance can be attached to this argument.Finally, circumcision also serves as an initiation ritual, in the transition from girlhood to womanhood.This argument, however, is meaningless in cases where circumcision is performed at an extremely young age.
These foundations are in many ways an illustration of a gendered approach to female sexuality.The sexual autonomy of the girl/woman in such a cultural setting does not stand on its own but derives its meaning from the sexuality of the man. 10The key to female sexual integrity within such a cultural context is contained in her circumcision. 11What is more, the socioeconomic context has to be taken into account.In the countries where female circumcision is common, marriage for women is often one of the few options for survival.Those who do not allow themselves to be circumcised are excluded from the community; in any case they are not considered to be marriageable and thus sacrifice a certain level of financial and social security.The consent of adult women to circumcision must be put into perspective against this background; as far as female minors are concerned, Western standards of legally valid consent are non-existent, and in any case parents or others take the decision as to their circumcisions.

The ECHR: The obligation to offer adequate and effective protection
Having drawn a brief profile of the nature of FGM, the question arises how to relate FGM to the ECHR.It should be noted that the ECHR does not provide a specific norm prohibiting FGM.Moreover, one has to bear in mind that the ECHR does not provide detailed instructions on the nature and the extent of the protection to be offered by the States. 12Moreover, according to the by the authorities to act if the risk was foreseeable constitutes a violation of the victim's rights under the ECHR.
At the same time, the ECtHR does not expect the protecting authorities to do the impossible.What makes FGM, and all other forms of child abuse, more complicated is namely that it presents a concurrence of legal interests: the right to be protected against inhuman treatment, as well as other serious violations of physical integrity must be balanced against the right to family life (Article 8 ECHR). 19An extra complication comes into play when the (threatened) risk is identified in the context of a (medical) welfare contact: the duty of professional confidentiality, the counterpart of the right to privacy.Welfare relationships are by definition confidential; any resulting information may not be passed on to third parties.This means that the social/medical worker faces a dilemma: reporting breaches the bond of trust and, if it leads to intervention, an infringement of family life.Therefore, the procedure of reporting, implying a violation of the duty of professional confidentiality, has to live up to certain conditions in order to be justified.The setting aside of the duty of professional confidentiality must be regulated under the law and must be necessary in a democratic society (Article 8 Paragraph 2 ECHR). 20In order to justify the setting aside of the duty of professional confidentiality a substantial (threatened) violation to the individual (potential) victim is needed, to be supported by factual evidence and reasonable or understandable grounds that underlie the suspicion of FGM. 21oreover, the decision-making process is subject to certain procedural requirements. 22hus, passing on information on (the reporting of) a FGM case to criminal law enforcement authorities is clearly subject to certain requirements.
However, once a substantial suspicion of FGM is aroused, medical and social authorities must inform the criminal justice authorities.This follows from the case law of the ECtHR, indicating that the State is obliged to provide effective protection against serious violations of fundamental legal interests, which is the case for FGM. 23As was recently stated in K.U.v. Finland: '(…) States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person including attempts and to reinforce the deterrent effect of criminalisation by applying criminal law-provisions in practice through effective investigation and prosecution (…).Where the physical and moral welfare of a child is threatened such injunction assumes even greater importance.' 24 Clearly, in order to be able to provide effective protection and to reinforce the deterrent effect of criminalisation, the criminal justice authorities have to be aware of the offence, depending on medical and social authorities to pass through information.Nevertheless, the passing of information to the criminal justice authorities must not be taken as a synonym for prosecution, as the case law of the ECtHR indicates that the right to family life is a countervailing principle which has to be taken into account. 25Whether prosecution is indicated depends on the circumstances of the case, implying that the criminal justice authorities need full information.What is more, full information is needed in order to draw up an effective criminal investigation, implying that the criminal justice authorities keep an eye open as to the specific nature of the offence, as well as the vulnerable position of the victim. 26umming up, the conclusion is that the case law of the ECtHR obliges States to provide effective protection, indicating that intervention by the criminal justice system is justified, or at least is not blocked by withholding information to the criminal justice authorities.Whether or not prosecution is justified will depend on the circumstances of the case.

Dutch policy on FGM with regard to the issue of (statutory) reporting
The question I would now like to address is how the Dutch practice of combating FGM is related to the observations made earlier, particularly where the issue of reporting is concerned.In order to have a good understanding of the considerations of the Dutch Government it is of importance to remember that FGM is committed on a regular, yet relatively small basis in the Netherlands: according to self-reporting sources there may be an estimated 50 cases per year. 27eterminative for the policy regarding FGM is the fact that it forms part of the broader policy on combating child abuse. 28This is important since this area traditionally focuses on the provision of assistance: criminal law serves as a last resort, it is the big stick.Although this choice of policy has, in principle, been approved by the Dutch Parliament, it has always been urged to make the policy for combating FGM more specific.
All this led to the establishment of a state commission in 2004, the Sanders Commission, which was given the task of advising the Government on the policy for combating FGM. 29The Commission advised, among other things, that the medical and social services should have a statutory duty to report FGM to the Centre for Consult and Report Child Abuse (CCRCA) (Advies-en Meldpunt Kindermishandeling), It should be noted that Dutch law already provides for such a reporting possibility: youth welfare workers are already permitted to disregard professional confidentiality by virtue of Article 53 Paragraph 3 of the Youth Care Act (YCA) (Wet op de jeugdzorg) whenever the child's best interest requires this. 30Indeed, according to Article 55 Paragraph 3 of the YCA Implementation Decree (Uitvoeringsbesluit Wet op de jeugdzorg), youth welfare workers have a duty to report such cases. 31They report to the CCRCAs which, in turn, then have the authority to report cases to the authorities by virtue of Article 11 of 32 A. Hirsi Ali, Voorstel tot het invoeren van een controlesysteem ter bestrijding van  immigrants to pass an examination testing their knowledge of the Dutch language and traditions, information regarding criminal liability for FGM thereby being provided within this context.Recently the Government has put forward a plan to introduce a contract, to be signed by parents belonging to the risk groups who are planning to travel to their homeland with their minor daughters.The contract obliges the parents to protect their daughters from FGM in their homeland.In case of non-compliance, a punitive sanction may follow.In addition, a group of experts will be appointed who will report cases of (alleged) FGM; G. Herderschee et al., 'Groep deskundigen gaat letten op meisjesbesnijdenis' ('Control over FGM by a Group of Experts'), Volkskrant, 6 February 2009.36 Six risk areas have been designated: Amsterdam, Rotterdam, Tilburg, Eindhoven, The Hague and Utrecht, the intention is to increase the amount of risk areas; Kamerstukken II 2007-2008, 28 345, no.65, p. 5. 37 However, two recommendations were accepted, indicating a broadening of the criminal law: the recommendation to extend the period of limitation in criminal law until the eighteenth year of the victim and the recommendation to extend the competence of the criminal law.The latter allowing Dutch prosecutions of FGM cases performed abroad.38 One might argue that 'resistance' is an incorrect term as medical and social personnel are clearly confronted with a moral dilemma when reporting as it implies a breach of trust.Moreover, a report requires a substantial suspicion, indicating a voluntary bodily examination or information to be obtained from the persons involved.However, notwithstanding the need to solve such (practical) difficulties, in my opinion the key lies in the strict division between medical and juvenile care and the legal field, specifically the criminal justice system, giving way to a fundamental reluctance to inform the criminal justice authorities.39 Kamerstukken II 2007-2008

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the YCA.The Sanders Commission proposed that this authority to report should be replaced by an obligation to do so.Related to the obligation to report, the Sanders Commission advocated intensifying the periodical medical check-up carried out by the Youth Health Services.The commission was in favour of a full bodily examination to be performed on a voluntarily basis; a compulsory checkup, at the time being suggested by the Dutch MP Ayaan Hirsi Ali, was found to be disproportionate and to be in violation of the right to privacy (Article 8 ECR). 32he recommendation to introduce statutory reporting was rejected by the Government; instead it was stated that medical and social workers have a moral duty to report. 33Prolonging the former policy, the Government focused on promoting information and expertise, 34 as well as raising awareness among the target groups. 35So-called risk areas were designated, 36 each area developing a local policy implying cooperation between social, medical and judicial authorities. 37t is clear that this choice of policy is in perfect keeping with the preferences of the (medical and) social services since within these circles there is a great deal of resistance to the introduction of a statutory duty to report. 38owever, as mentioned above, the Dutch Parliament was -and is -in favour of a more robust approach.In accordance with the Sanders Commission's proposal, it adopted an amendment urging the introduction of a statutory duty to report. 39This motion was suspended as the Secretary of Public Health, Welfare and Sport, as well as the Minister of Juvenile Care, had committed themselves to ordering an internationally-oriented survey into the pros and cons of a legal duty to report.
That report has been recently published. 40It concludes that a statutory duty to report has no added value as experiences elsewhere show that this results in an increase in incorrect reports. 41This is why, until very recently, the Dutch Government preferred to incorporate mandatory reporting in the YCA, based upon self-binding norms, thus continuing the present policy.However, in the explanatory notes, as well as the surveys underlying these notes, there is an insufficient distinction between forms of domestic violence, namely the specific problems concerning FGM. 42The policy proposals and conclusions are particularly aimed at the broader problem of child abuse, whereby insufficient attention is given to the specific nature of FGM and the violations of fundamental rights entailed therein.Although domestic violence and child abuse can entail very serious forms, this is by definition the case with FGM.That is the reason why it entails further-reaching obligations for the State.In this light it is important to note that efforts to introduce reporting codes by the social services, undertaken in the past, have not been successful. 43To date, as a result of consistent political pressure, the Dutch Government has consented to present a draft proposal to legalise the reporting code. 44

Following the French example?
As the Dutch Government recently has taken a serious interest in the French policy on FGM a short overview is useful. 45France is, after all, the only European country with a substantial number of FGM convictions. 46This raises the question of what elements contributed to this 'success', particularly related to the issue of the transfer of information.
Beforehand it is important to note that the French success had a very long build-up period and must be put into perspective.There is no question of a national prosecution policy; in fact, the prosecution of FGM has been limited to the areas of Paris and Ile-de-France.Moreover, it must be noted that the occurrence of FGM in France is -assumingly -on a much larger scale than in the Netherlands.Because of its colonial past, France has always been a host country for many African immigrants.As far as FGM is concerned immigrants from Mali attract particular attention; they commonly perform circumcision at an extremely young age, which leads to increased health risks.As a result the chance of discovery is considerable because these children are periodically examined by infant welfare services and paediatricians.These periodical checkups are compulsory; moreover, parents often depend on this free medical care owing to their socio-economic circumstances.
All this meant that medical and social services were frequently faced with the medical consequences of FMG in the late 1970s, particularly in the Paris area.It led to them to lodge a request to the French Government, urging that tougher action be taken.
This was the start of a process to find better ways of combating FGM, whereby, just as in the Netherlands, it was first opted to encourage awareness.At first a protocol was drawn up, directed towards informing the target groups as to the criminal nature of FGM.When this failed to produce the desired results, the choice was made to resort to the criminal law. 47From the onset, the expectations regarding criminal law intervention were very low; people were very much aware of the legal implications and reservations regarding reporting FGM by the medical and social services. 48evertheless, the continual confrontation with the severe, sometimes lethal, consequences of FGM on infants, in connection with the lack of concrete policy results induced the Parisian infant welfare organisation (Protection Maternelle et Infantile; PMI) to set aside the duty of professional confidentiality and to seek cooperation with the police.This enabled the French Public Prosecution Service to prosecute, initially, a number of well-known practitioners.The aim was not only to make the target groups aware of the criminal sanctions against FGM, but also of their enforcement.
Initially, these criminal trials did not generate the desired public attention because they were tried before the lower courts. 49In later years, however, the French Public Prosecution Service saw the opportunity to qualify FGM as a 'crime' and this led to trials in the Assize Courts where cases are tried before a jury.The Centre d'Abolition Mutulation Sexuelle (CAMS), an NGO that supported the trials as a private prosecutor (Articles 2 and 3 of the French Penal Code), played an important role in this.The latest criminal trials have led to an extensive public debate on the criminal nature of FGM.
In later years the French Government introduced an additional measure: the medical contract, implying that parents travelling to their homeland, accompanied by their daughter(s), are requested to sign a medical contract stating that they have been informed about FGM being punishable, as well as promising not to have their daughter(s) circumcised during their stay abroad. 50The aim is to inform the parents as well as their peers regarding FGM being an offence, as well as to provide immigrants with an instrument against peer pressure.
Nevertheless, it is fair to say that according to reports French policy has not led to a decrease in FGM.The problems have shifted: circumcisions are postponed until girls are older, which effectively reduces the possibility of any discovery. 51rom the above it appears that a number of factors have been crucial for the French 'success': the extent of the problem, the willingness of part of the (medical) juvenile welfare service to report FGM to the police, the willingness of the French Public Prosecution Service to prosecute and encouragement from the CAMS.And last, but certainly not least, losing belief in a policy primarily aimed at prevention and information.

Evaluation
The issue I have addressed in this paper is whether or not there is a need for the introduction of statutory reporting as a prerequisite to provide adequate protection against FGM.Having taken the Dutch policy as a case study, I have provided an overview of the standards applied by he ECtHR regarding adequate protection against serious offences, including child abuse and sexual violence.Moreover, for the sake of comparison, I have provided an overview of the French (criminal) policy towards FGM, France being the only European country known to have prosecuted FGM successfully.So, does the Netherlands meet the conditions which enable adequate and effective protection against FGM, in particular by instigating investigations and prosecutions?And if not, what is to be learned from France?
My answer to the first question is in the negative.Even if we put the meaning of criminal law interference in such complex matters as FGM into perspective, we cannot but conclude that the possibility of providing protection by means of the criminal law is hampered in the Netherlands by the (medical) social services that are reluctant to report or pass on relevant information, in any shape or form, to the criminal law enforcement authorities.Moreover, the Dutch Government continues to lend its support through the policy choices it makes.Indeed, even as the need for intervention by the criminal justice system is explicitly acknowledged in the present policy, one is still confronted with the objections raised by the social and medical authorities against statutory reporting. 52Moreover, the administration of criminal justice cannot be blamed for this: as there is no adequate transfer of information, the criminal justice authorities cannot live up to the obligation to provide adequate protection.
However, I do not wish to suggest that the ECtHR's case law lays down that statutory reporting should be introduced, at any rate not in the sense of a direct duty to report to the criminal law enforcement authorities.The ECtHR has stipulated that government bodies should take specific measures, but States have discretion in their choice of measures: it is the result that matters, not the way in which that result is achieved. 53Nevertheless, taking into account the serious nature of FGM, intervention by the criminal justice system is clearly indicated.Because of this, the construction which was proposed by the Sanders Commission is to be preferred: the introduction of a statutory duty for the (medical) social services to report to the CCRCAs, which in turn then have to report the FGM to the police.This does not preclude any preceding consultations with other colleagues, if only to prevent a (medical) social worker having to bear the responsibility by him/herself. 54In this way the (medical) social worker is protected as much as possible and the transfer of information to the criminal law enforcement authorities is safeguarded.Later on, these consultations can become more inclusive to allow the participation of criminal law enforcement authorities in the decision-making process, which may then lead to prosecution.This particular construction also meets the procedural demands made by the ECtHR regarding the setting aside of the duty of professional confidentiality. 55oreover, and of crucial importance in this matter, the reporting of a FGM by the CCRCAs does not necessarily lead to criminal prosecution.After all, the Dutch Public Prosecution Service has the right not to prosecute if this is in the general interest by virtue of Article 167 Paragraph 2 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering) (the principle of prosecutorial discretion). 56This creates room to take the appropriate decision in the case submitted by using well-known procedures while balancing all the interests concerned. 57So, prosecution may be indicated, but need not necessarily be the case.The possibility to do this, however, should remain open and not be precluded -as is practically the case now -given the demands which the ECtHR makes.
Finally, as to the French policy, I cannot help but conclude that the situation is different.Not only are there -assumingly -fewer circumcisions in the Netherlands, they are also performed at a later age which means that the health risks and, as a result, the chances of discovery are smaller. 58It is therefore plausible that the (medical) juvenile welfare service in the Netherlands is confronted with fewer FGM cases; the chances are that statutory reporting to the criminal law enforcement authorities is felt to be disproportional by medical and social authorities.Moreover, Dutch criminal law does not allow interest groups to participate in a criminal lawsuit in order to generate attention to FGM.Nevertheless, despite the clear cultural and legal differences, there is a clear lesson to be learned from the French: in order to be able to guarantee the level of legal protection required by the ECtHR, the authorities must provide for an adequate transfer of information to the criminal justice authorities.Clearly, the Dutch will have to adjust their policy in this respect, in order to live up to the ECtHR's standard of adequate protection against FGM.
genitale verminking (Proposal for the Adoption of a Monitoring System to Combat Genital Mutilation), 2004.See also: Commission on Combating Female Genital Mutilation, supra note 29, chapter 4. 33 Kamerstukken II 2007-2008, 28 345, no.65, pp.6-7.34 To this extent NGOs are being structurally financed in order to support the exchange of data and knowledge.35 One of the instruments being used is the Civic Integration Act (Wet Inburgering) of March 2006, 2007 Staatsblad, no.625, requiring potential