Els Leye and Ino Kehrer 121 from population groups where FGM is practiced was suggested in 2005. After an in-depth inquiry by a special Commission, the Dutch government concluded that it did not have the legal authority to oblige minors from specific population groups to cooperate with gynaecological examination66. The Commission argued that the measure was unconstitutional (i.e., against the principle of dis­ crimination, as it singles out population groups to impose a measure), against the individual’s right to freedom, and that only perpetrators, not victims, could be obliged to endure such a mea­ sure on the basis that it endangered public health. We have argued elsewhere that imposing such a measure regarding FGM is discriminatory and repressive, and that—if deemed relevant and feasible—genital screenings should be framed within the detection of sexual abuse of all minors67. Furthermore, such a measure would require substantial resources to put it into practice, in partic­ ular obtaining informed consent by parents and training professionals68. In his Gender Perspectives and torture report, the Special Rapporteur cautions that prosecution and the imposition of sanctions must result from a nuanced determination that takes the best inter­ est of the child into account. Article 3 of the CRC stipulates that “the best interests of the child” must be a primary consideration. However, such “best interests” should not be interpreted in an overly culturally relativist way, whereby other rights guaranteed by the CRC are denied69, nor should such measures contribute to the revictimization of girls and women, or contribute to the suffering and pain already inflicted upon them. Inclusive, non-paternalistic and more convincing cross-cultural best interest arguments must be made when seeking to investigate and prosecute FGM. Finally, overemphasizing the need to criminalize FGM can cause further harm to the girl and her whole family, if the suspicion proves to be unfounded. This was the case in Sweden, where vague suspicions reported to police resulted in extensive measures taken in the form of compul­ sory genital examinations, custodians being detained, and children taken into custody by force. The criminal inquiries in none of those cases ended in prosecutions, and local authorities were charged with ethnic discrimination due to the disproportionate response and harm caused to the Swedish Somalis under suspicion70. One effective method to overcome the issues associated with reporting by professionals and implementation is the development of guidelines to assist professionals in assessing the level of risk of FGM71. This would contribute to a more nuanced response to the implementation of laws, as requested by the Special Rapporteur. Commissie Bestrijding Vrouwelijke Genitale Verminking, 2005. Bestrijding vrouwelijke genitale verminking. Beleidsadvies. Advies uitgebracht door de Commissie Bestrijding Vrouwelijke Genitale Verminking aan de minister van Volksgezondheid, Welzijn en Sport, Zoetermeer. 67 Leye et. al., (2007, op cit.). 68 Given that in a European context, the caseload of women and girls with FGM is lower than in countries where FGM is highly prevalent, only a very limited number of health professionals can built sufficient expertise to detect the ‘minor’ types of FGM, such as incisions, prickings. 69 Leye E and Middelburg AM, op cit. 70 Johnsdotter S, Mestre i Mestre R.M. Female genital mutilation in Europe: an analysis of court cases. European Commission, 2015; Johnsdotter S. Discrimination of certain ethnic groups? Ethical aspects of implementing FGM legislation in Sweden. Malmö University, Sweden, 2009. 71 See for example Decision Tree in Belgium: the Decision Tree assists professionals to detect FGM and support girls affected by or at risk of FGM. It is a protocol describing the protection measures that professionals need to adopt when confronted with a risk or an act of FGM. The tree is supplemented by risk assessment indicators and a risk scale which professionals are advised to consider before reporting. Risk indicators aim to help professionals in making an objective assessment of the situation and have been designed to be culturally sensitive and child sensitive. Once the risk indicators have been identified, professionals can refer to a five level risk scale. Protection measures as described in the decision tree are then determined according to the level of risk identified by the professionals. Available at: www.strategiesconcertees-mgf.be/wp-content/ uploads/MGF-tryptique_final_RTP.pdf. 66