In recent years, a number of commentators have warned against viewing the human rights movement as a panacea for prevention of harm (Bell and Carens 2004; Coomaraswamy 2004; Kapur 2002; Shweder in press). David Kennedy, author of The Dark Sides of Virtue: Reassessing International Humanitarianism (2004), warns that unless those in the human rights movement operate with awareness of the potential pitfalls and perils, the human rights approach can create as many problems as it seeks to resolve. Similarly, Daniel Bell and Joseph Carens (2004) call for an examination of ethical dilemmas faced by international organizations promoting human rights, arguing that critical appraisal is needed to “avoid repetition of mistakes and counter-productive actions” (Bell and Carens 2004:302). Some potential problems with applying a human rights framework are, therefore, worthy of consideration.
The Human Rights Framework Views Problems and Solutions Too Narrowly
The human rights movement articulates problems in political terms and solutions in legal terms. Numerous commentators have emphasized that legal strategies are unlikely to work in isolation from other efforts to end the practice of FGC. However, Kennedy (2004) argues that the human rights movement privileges legal strategies over others and suggests that this serves to delegitimize remedies in the domain of nonstate action (e.g., religious, national, or local work). The health framework similarly narrows the perspective for problematizing FGC as well as conceptualizing solutions, and perhaps serves as a cautionary tale. In the early 1980s, anthropologist Ellen Gruenbaum warned that the health angle “implies not only that the practice is ‘pathological,’ but that its solution might lie in a sort of campaign-style attack on the problem. Social customs, however, are not ‘pathologies’; and such a view is a poor starting point for change, since it is not necessarily the one shared by the people whose customs are under attack” (1982:6). With legislative actions aimed at ending FGC taking increasing prominence, we need to remind ourselves again that this is a social issue that reaches beyond its political ramifications. As such, viewing protection from FGC as a right to be enforced, granted, recognized, and implemented by the state must not de-emphasize or delegitimize approaches recognizing the cultural significance of FGC and the potentially multiple and cascading social effects of ending the practice. Kennedy explicitly warns against the limits of shifting from one narrow framework to another: “We could think of it as sin and send the religious, as illness and send physicians, as war and send in the military. Or we could think of it as a human rights violation and send the lawyers. Doing so can be a way of doing nothing, avoiding responsibility, simultaneously individualizing the harm and denying its specificity” (2004:34).
To date, 15 African countries have passed legislation that specifically bans FGC, and other nations are under pressure to do so as well, despite the fact that there exist divergent views on the potential effects of legislative action.6 Supporters argue that legal prohibition of FGC has a general deterrent effect, whereas others argue that legislation, as a top-down approach, can be perceived as coercive and thus derail local efforts to end the practice. Questions regarding the effects of legislation are numerous: Does it deter the practice of FGC? Does it drive it underground? Does it incite mass reactions? Is it perceived as enforceable? How does it interact with other efforts aimed at ending the practice? With such questions unanswered, we might be prudent to heed Leslye Obiora's warning against a “naively idealized confidence in the law” (1997:352).
The Imposition of Western Human Rights Constructs
Several commentators argue that human rights is a Western construct imported, and in some cases imposed, on other cultures (e.g., Kennedy 2004; Mutua 2002; Shweder in press). Others counter that the conceptualization of a “human rights agenda” as Western and not African is overly simplistic (Cowan et al. 2001; Leary 1990; Welche Jr. 1995). Welche Jr. (1995) notes that in certain African cultures, human rights ideologies are embedded in indigenous values. However, Kennedy contends that although there are parallel developments in other cultures that provide interesting analogies, the ideas embraced by the human rights movement and codified in UN doctrines are the “product of a particular moment in place: [the] Post-Enlightenment West” (2004:18).
Makau Mutua (2002), along with Kennedy (2004), argues that although the human rights movement claims to be universal and seemingly apolitical and ahistorical, it is fundamentally Eurocentric and promotes the universalization of Eurocentric ideals. Several commentators further contend that the human rights movement has, in essence, become a rescue mission from outside (Kapur 2002; Kennedy 2004; Mutua 2002; Shweder in press), casting intervention as a virtuous and moral imperative. Mahmood Mamdani reminds us that this results in a power imbalance that is all too familiar:
The history of colonialism should teach us that every major intervention has been justified as humanitarian, a “civilizing mission”… Now, as then, imperial interventions claim to have a dual purpose: on one hand to rescue minority victims of ongoing barbarities, on the other, to quarantine the majority perpetrators with the stated aim of civilizing them. [2007:8]
The portrait of the human rights movement as a Western hegemonic civilizing mission often employs a static image of human rights, one cast with the creation of the Universal Declaration of Human Rights. Merry (2001:31) contests the image of human rights as a fixed and abstract conception and instead describes an evolving “culture of human rights,” one that develops and changes over time in response to a variety of social, economic, political, and cultural influences. She notes that in the past 50 years the concept of “human rights” has grown to include an expanded notion of collective and cultural rights. This is apparent in the evolving discourse on FGC; with the expansion of the conceptualization of human rights to include VAW, FGC has become firmly integrated into the emerging international culture of human rights.
A central question, however, is whether non-Westerners have provided meaningful cross-cultural input and influence in the human rights movement. A number of scholars (e.g., Glendon 2001; Welche Jr. 1995) have pointed to the role of non-Westerners in drafting UN doctrines as a basis for international law. Although acknowledging that the human rights movement has diffused throughout the globe and been embraced by diverse people, Mutua (2002) trenchantly argues that international organizations have resisted meaningful input from the Third World. In contrast, Leary contends that Western influence is now only one of a number of cultural influences on the development of international human rights standards, arguing that “other cultures are making significant contributions to our collective conception of human dignity” (Leary 1990:30).
Merry also maintains that the “human rights system is now deeply transnational, no longer rooted exclusively in the West” (Merry 2006:2). Along with other legal anthropologists (e.g., Cowan et al. 2001), Merry notes that, in the ongoing debate on how to balance the right to culture and human rights, commentators often employ a very narrow and essentialized view of culture. Among human rights activists, culture has often been cast as an “excuse for abuse,” with local custom conceptualized as harmful practices rooted in local culture (Cowan et al. 2001; Dembour 2001; Merry 2001, 2006; see also Hernlund and Shell-Duncan 2007). Merry (2001, 2006), along with Abdullahi A. An-Na'im and Jeffrey Hammond (2002), forward a more flexible and contested view of culture, suggesting that this perspective offers a better way to understand the transnational spread of human rights ideas and the transfer of human rights–based approaches to novel local settings. An-Na'im and Hammond (2002:13) offer the image of a “cultural tool kit” from which individuals construct strategies of action to meet their goals.7 They suggest that cultural variation, borrowing, and innovation create a range of options, allowing rights activists to support courses of action that best promote human rights. Consequently, Merry (2001) contends that culture can simultaneously be an opportunity as well as a barrier to change, helping to shape possibilities for action.
Undermining Women's Agency
A third potential problem with applying a human rights framework involves questions of undermining women's agency. In the decade since FGC became reconceptualized as a human rights issue, critiques have been leveled at developments regarding FGC, as well as more broadly at the movement working to eliminate VAW. Although acknowledging significant gains in protection of women's rights, several commentators (e.g., Coomaraswamy 2004; Kapur 2002) argue that the VAW movement has transformed the image of Third World women to one of powerless victims incapable of self-determination, self-expression, and reasoned decision making.
Kapur (2002) further argues that the VAW agenda has created a victim image that is ahistorical and essentializing, reinforcing the notion of a Third World “Other” who is civilizationally backwards, thoroughly disempowered, and helpless. At the same time, the victim image and the focus on violence invites protectionist measures from the state, remedies that have little to do with promoting women's empowerment or autonomy (Kapur 2002). Mutua expands on this view: “The grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on one hand, against victims and saviors, on the other” (2002:10). Elaborating on this savage–victim–savior metaphor, Mutua contends that the savage is not the state per se but, rather, cultural “deviations,” whereas the savior is the “human rights corpus itself, with the United Nations, Western governments, INGOs, and Western charities as the actual rescuers, redeemers of a benighted world” (Mutua 2002:11). Radhika Coomaraswamy, former UN Rapporteur for Violence against Women, contends that this position sanctions a belief in the superiority and power of one culture over another and allows the human rights movement to acquire an arrogant tone that can create more obstacles than it eliminates (Coomaraswamy 2004; see also Kapur 2002).
Critiques have also emerged along this line specific to FGC. Corinne Kratz has charged that many writings on FGC fail to recognize differences in African women based on nationality, class, ethnicity, education, or age. Instead, what emerges is the image of a homogenized, essentialized African woman who is “powerless, constrained by tradition defined by men, unable to think clearly, and [has] only problems and needs, not choices” (Kratz 1999:108). She further argues that conceptually, women become classified and defined by shared victimization by FGC (see also Abusharaf 2000).
Obiora (2007) offers Tostan as a “best practices” example that may demonstrate how change in a human rights framework can avoid removal of women's agency. The Tostan mission statement describes their aspiration to provide leaders with the knowledge and skill to become confident, respectful actors in social transformation and economic development in their own communities, “equipping participants to tackle everyday realities, of which female genital cuttings are just a sample” (Obiora 2007:75). Pointing to the success of Tostan, Obiora counters that “voluntary abandonment constitutes an eloquent case for empowerment” (2007:81). Clearly, efforts to end FGC through a human rights framework, not just in Africa but across the globe, must carefully assess the ramifications of their actions on women's agency.
Unresolved Questions Concerning Consent
As noted above, since the early 1990s an increasing number of countries have passed legislation banning the practice of FGC. The level of restrictiveness, however, varies. In some countries such as Kenya and the United States, FGC is prohibited on minors but is permissible for consenting adult women. In other countries such as Sweden, the United Kingdom, Senegal, and Ghana, FGC is prohibited at any age. Variations in restrictiveness, ranging from none to total prohibition, reflect unresolved questions concerning consent.
In cases of minors, debates center on whether parents and guardians have decision-making authority regarding FGC for their minor daughters (Boulware-Miller 1985). Alison Slack (1988) has drawn as an analogy the example of consent for medical treatment. Children below a certain age have “diminished capacity” and are unqualified to make medical decisions on their own behalf. In most instances, medical decision-making authority is held by parents or guardians. Slack (1988) notes a crucial exception: in the United States, courts have ruled that parents cannot refuse medical treatment on religious or other grounds when their children's health would be seriously compromised. Slack contends that a similar situation exists with excision and infibulation and argues that “it seems unjust that the decision to have an operation performed on a baby girl—one that could risk her life or health, one that will permanently change her physical characteristics and may even harm her future children—would be made without her understanding or consent” (Slack 1988:470).
It is important to note that although Slack specifically addresses excision and infibulations, legal prohibitions do not restrict just these forms of FGC. Less severe forms of cutting, clitoridectomy, and nicking are banned in most instances as well. This has raised questions about what constitutes acceptable risk and how to decide when parents' rights to exercise their culture are outweighed by a child's right to protection. Alison Dundes Renteln has pointed to the tension inherent in this debate, noting that “according to the international law (The Convention on the Rights of the Child), children have both a right to practice their culture under Article 30 as well as a right to traditions prejudicial to their health under Article 24(3)” (2002:5). The new UN interagency policy statement recognizes the fact that parents “who take the decision to submit their daughters to female genital mutilation perceive that the benefits to be gained from this procedure outweigh the risks involved” (WHO 2008:9). Nonetheless, they forcefully conclude that “this perception cannot justify a permanent and potentially life-changing practice that constitutes a violation of girls' fundamental human rights” (WHO 2008:9).
The case of FGC appears to be held to exceptionally strict standards when compared to other body modifications such as piercing, scarring, tattooing, and, as several commentators note, male circumcision. Kirsten Bell, for instance, expresses concern over the “asymmetry in discussions of [male and female] genital cutting and the problematic assumptions they perpetuate” (Bell 2005:140). Robert Darby and J. Steven Svoboda also note that in the West “male and female genital alterations enjoy such strikingly different reputations. … The first is regarded as a mild and harmless adjustment that should be tolerated, if not actively promoted, and the second as a cruel abomination that must be stopped by law, no matter how culturally significant to its practitioners” (2007:305). Mary Fox and Michael Thomson (2005) oppose the permissive standard applied to male but not FGC, contending that both practices should be couched in terms of child protection. Although a growing number of organizations are involved in activism against what some refer to as “MGM” (male genital mutilation; see Silverman 2004), a human rights framework has not been as readily embraced for “MGM” as “FGM” (Darby and Svoboda 2007; Svoboda 2004). Shweder and colleagues question whether “unequal treatment of male and female circumcision demonstrate[s] hypocrisy, ethnocentricism, or unjustifiable limits to the tolerance granted ethnic minority groups in the United States and European nations?” (2002:1). Furthermore, only rarely in comparative analyses is the type of FGC considered. Should the same standards for consent apply to symbolic or nicking forms of FGC as to infibulations?
The issue of consent is contested not only for minor girls but also for adult women. Opponents of FGC have argued that it is impossible for adult women to provide informed consent because only someone who was “coerced, manipulated or highly irrational will agree to undergo female genital mutilation” (Sheldon and Wilkinson 1998:271). Such opponents of FGC therefore argue that the practice should be banned overall, irrespective of age. Sally Sheldon and Stephen Wilkinson (1998) suggest that the question of valid consent to FGC has been assessed in reference to varying standards for informed consent. A less stringent standard addresses pressure placed on women by friends and family to persuade a woman to undergo FGC. They suggest that safeguards to prevent such coercion for other decisions, such as organ transplantation, could be applied to the case of FGC, making valid consent a possibility.
A stricter standard for consent is more often invoked by opponents of FGC, addressing pressure to conform to “deep-rooted, internalized social expectations” (Sheldon and Wilkinson 1998:271). Adoption of this standard leads to the conclusion that, given social pressure to conform, it is impossible for a woman to ever rationally consent to FGC. Slack (1988:472) raises the question, “Can the decision to be circumcised even when all the facts and reasons are known, be considered truly voluntary when the only alternative is to be ostracized for such aberration?” She notes that, in addition to cultural pressure, women may experience social and economic pressure, particularly when FGC is considered to be a prerequisite to marriage, and marriage is the key avenue to economic security, social support, and legitimate childbearing.
Sheldon and Wilkinson (1998) point to perplexing and disturbing contradictions that arise in the United Kingdom when legislation banning FGC is applied to adult African women but not applied to cosmetic surgeries on Western women. They argue that “if the claim that consent to these procedures [FGC] can never be valid holds true, then it may also hold true for the many cosmetic surgeries where the decision to have such surgery results from overt or covert social pressure to conform to certain physical ideals” (Sheldon and Wilkinson 1998:272). The irony of differential treatment of FGC and cosmetic surgeries has become magnified with the growing popularity in Europe and the United States of female genital cosmetic surgeries (FGCS). Such surgeries include labia reduction, labia remodeling, clitoral reductions, and vaginal “tucks” (Altermd n.d.), procedures that are referred to by some as “designer vaginas” rather than FGM (Derrick 2001; Navarro 2004). The arrogance of the implication that Western, but not African, women can rise above the pressure of societal norms of ideal physical form to provide valid consent is disturbing, and perhaps evidences what Obiora refers to as the “persistence of orthodox racist ideology in … jurisprudence” (2007:69).