August 19, 2010
Summertime in rainy Belgium! Relaxed after a sunny family holiday abroad, with no lectures or meetings on the agenda, I finally find some time to write a blog entry. Only to realize that it is August, and that the judges at the European Court of Human Rights are also entitled to their holidays. This means: no new cases. And among the nearly 200 judgments the Court delivered in July, the other Strasbourg Observers bloggers have already discussed the most interesting ones.
That is why I take the liberty to discuss a 2007 case. I happened to be going through all article 3 cases since 2005, for the update of an ECHR Commentary .
By the way, this is not a an exercise I recommend to anyone. The article 3 case law, especially on prison conditions, is a true cabinet of horrors. It makes one despair of whether there might ever be something like ‘European civilization’. ..
Anyway, I came across the inadmissibility decision in the case of Collins and Akaziebie v. Sweden, which I had never thoroughly read before.
The applicant, a Nigerian woman from Delta State, sought asylum in Sweden when she was 25 years old and pregnant, on the ground that she wanted to avoid being submitted to female genital mutilation (FGM). She claimed that in Nigeria women had to undergo a serious type of FGM (infibulation) at childbirth. Later, she added that she also wanted to protect her daughter from having to undergo the practice.
She was denied asylum on grounds that FGM was not included as a ground for asylum under Swedish law, and because FGM was prohibited by law in Nigeria and this prohibition was observed in at least six Nigerian states. An internal flight alternative was therefore available, according to the Swedish authorities.
The European Court of Human Rights held first of all that “it is not in dispute that subjecting a woman to female genital mutilation amounts to ill-treatment contrary to Article 3 of the Convention”. That is an important statement, with the implication that all State Parties should abstain from returning women to their country of origin if they can show a real risk of being subjected to FGM.
As in all cases of this type, demonstrating the ‘real risk’ is the tricky part. The Court declared this application manifestly ill-founded because the applicant had failed to substantiate a real and concrete risk.
The Court advances three reasons for this, two of which raise a number of questions.
The argument I do not want to contest is related to the credibility of the applicant. On the basis of the facts as related in the decision, this may indeed be an issue. Yet let’s focus on the broader issues involved that may be relevant for other cases.
In the first place, the Court minimizes the general risk of FGM in Delta State. It notes that the prevalence of FGM for the whole country of Nigeria is around 19 %. Moreover FGM is prohibited by law, and NGOs as well as the government campaign against it. These arguments are not persuasive. Nigeria is a very large and very diverse country, hence an average figure for the whole country is not very useful. A quick google search is sufficient to find data that are segregated by state. According to the US Department of State, the prevalence in Delta State is 80-90 %, exactly as the applicant claimed. That is a serious overall risk. It would be even more useful to have the data by ethnic group, as this tends to be an important factor in the area of traditional practices such as FGM. As for the legal prohibition; well, if only things were that simple! The French say ‘on ne change pas la société par décret’, and the area of so-called harmful cultural practices is precisely one in which we have been experiencing for decades that it takes a lot more effort, and a lot more time to change deeply rooted customs and traditions. Such laws exist in most countries with high FGM prevalence, yet are rarely enforced, and have very little impact.
Next, the Court refers to the applicant’s personal situation. Noting that she had 12 years of schooling, is now 30 years old, and that she successfully managed to flee to Sweden and apply for asylum, the Court reasons: “it is difficult to see why the first applicant, having shown such a considerable amount of strength and independence, cannot protect the second applicant form being subjected to FGM, if not in Delta State, then at least in one of the other states in Nigeria where FGM is prohibited by law and/or less widespread than in Delta State”.
There are two arguments in this quote. Let’s take the reasonable one first. It is about the existence of an internal flight alternative. In the case of Salah Sheekh v. the Netherlands, delivered a few months earlier by a Chamber with very similar composition (5 out of 7 judges, including the president were the same), the Court ruled that “as a precondition for relying on an internal flight alternative certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment”. In the FGM case, the Court makes no effort to check whether these criteria are fulfilled. Upon closer view, an internal flight alternative might be difficult when harmful cultural practices are the issue, because internal migrants usually settle among their ethnic kin, and minority groups tend to continue their cultural practices, sometimes emphasizing them even more. For example, prevalence of FGM in Kenya is around 32 %, yet is nearly universal (97 %)among ethnic Somali in Kenya. Such factors have to be taken into account, and might in some cases invalidate an internal flight option.
Maybe that is the reason why the Court added its final argument, which effectively bars all claims of this type, stating that “if you can manage to get from Nigeria to Sweden, you can manage to protect your child from FGM”. In other words, if a woman is strong enough to stand up against cultural oppression, she is too strong for outsider protection. Yeah right. Is this the same Court that is forever emphasizing that it is only interested in protection that is ‘practical and effective’?
The Court might be afraid to encourage the 3 Million girls and women who are annually at risk of FGM to flee to Europe. Yet you cannot blow hot and cold at the same time. If forcing someone to undergo FGM is a violation of article 3, the same rules should apply as in other cases of this type. Women claiming to flee FGM should get a fair assessment of the ‘real risk’ involved. There is much room for improvement on that front.