110 GENDER PERSPECTIVES ON TORTURE: Law and Practice Powerlessness According to Special Rapporteur Nowak, powerlessness arises when one person exercises total control over another. If it is found that a victim is unable to flee, or is otherwise coerced into stay­ ing, the powerlessness criterion can be considered fulfilled. It also allows taking a victim’s specific status into consideration18. With regard to non-consenting minors who are dependent on their par­ ents, and where loyalty issues prevent them from opposing FGM, the state of powerlessness is sat­ isfied. Furthermore, girls and women have very little decision-making power, if any, with regard to the cutting of their genitals, which underlines the element of powerlessness. 3. FGM in a Migration Context Might Add to Torture or CIDT FGM is also prevalent in countries with migrant populations that come from regions where FGM is practiced. In this section, we will explore how the migration context contributes to the tor­ ture and ill-treatment women and girls suffer because of FGM, and those who are at risk of being subjected to it. We will do this by providing a brief overview of European States’ obligations to diligently protect and support women and girls affected by FGM, or who at risk of it, the obligation to prosecute, as required by the Istanbul Convention (Table 2), and by discussing some gaps related to these obligations19. Istanbul Convention The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, also known as the Istanbul Convention, was adopted in 2011, and as of March 2018, has been ratified by and entered into force in 28 European countries that are members of the Council of Europe (47 countries in total)20. It is the first legally binding instrument in Europe on preventing violence against women and domestic violence. It requires States to act with due dili­ gence, to prevent FGM, to protect victims, and to prosecute perpetrators21. These obligations, with their related articles from the Istanbul Convention, are detailed in the table below. A/HRC/7/3, § 28. According to the Istanbul Convention, States have the obligation to prevent (Art. 12-17), protect (Art. 18-24, 27-28, and 60-61) and prosecute FGM (Art. 31, 38, 42, 44-46, 49, 50-51, 53, and 56). For an overview of all articles in relation to FGM: see Council of Europe and Amnesty International, 2014). 20 As of March 3, 2018, these countries are: Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Italy, Malta, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovenia, Spain, Sweden, Switzerland, Turkey. Full list can be consulted at: http://www.coe.int/en/web/conventions/full-list/-/conventions/ treaty/210/signatures. 21 The application of the due diligence standard to violence against women is recognised in the UN General Assembly Declaration on the Elimination of Violence against Women (1993) in Article 4c, where states are urged to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons. The Committee on the Elimination of Discrimination against Women (CEDAW) noted in its General Recommendation N° 19 (1992) that states may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence (Council of Europe and Amnesty International, 2014). 18 19