106 GENDER PERSPECTIVES ON TORTURE: Law and Practice 1. Introduction Two hundred million women and girls worldwide have been subjected to female genital muti­ lation (FGM), while each year three million girls are at risk of being cut1. The practice is predom­ inantly prevalent on the African continent, but is equally occurring in other parts of the world, including Europe. This paper seeks to explore how the migration context can increase the likeli­ hood of torture and other ill-treatment for women and girls living with FGM, or at risk of it, by focusing on Europe. 2. FGM and the Torture Framework By complying with the predominant social norm in certain communities, in particular by per­ forming FGM, families avoid being ostracized by their communities and adhere to the perceived benefits of the practice. However, by doing so, the ability of women and girls to fully exercise their human rights is clearly denied. UN General Assembly resolution 67/1462 defined FGM as a practice that is “an irreparable, irre­ versible abuse that impacts negatively on the human rights of women and girls”. The human rights at stake include the right to be free from discrimination3 on the basis of sex, the right to be free from violence and inequality, the right to life, the right to the highest attainable standard of health, the rights of the child, and the right to freedom of torture and other ill-treatment. The Special Rapporteur’s 2016 report on Gender Perspectives on torture and other cruel, inhu­ man and degrading treatment (CIDT) or punishment4 reiterates that FGM constitutes torture or ill-treatment5 and that it must be prohibited in accordance with, inter alia, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (article 5). Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) lists four required elements to meet the threshold of torture: severe pain and suffering (physical or mental), intent, purpose, and State involvement6. Moreover, the element of 1 UNICEF, 2016. Female genital mutilation/cutting, a global concern, available at: https://www.unicef.org/ media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf. 2 A/RES/67/146. General Assembly. Sixty-seventh session. Resolution adopted by the General Assembly on 20 December 2012. 67/146. Intensifying global efforts for the elimination of female genital mutilations. 3 This refers to any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (Joint General Recommendation/ General Comment N° 31 of the Committee on the Elimination of Discrimination against Women and N° 18 of the Committee on the Rights of the Child on harmful practices. New York: United Nations, 2014, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download. aspx?symbolno=CEDAW%2fC%2fGC%2f31%2fCRC%2fC%2fGC%2f18&Lang=en. 4 FGM has been recognised as a form of torture at other occasions as well, such as the Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, para. 18, available at http://www.unhcr.org/refworld/docid/47ac78ce2.html; Human Rights Committee (HRC), General Comment No. 28: Article 3 (The equality of rights between men and women), 29 March 2000, para. 11.17, available at: http://www.unhcr.org/refworld/docid/ 45139c9b4.html; European Court of Human Rights, Application no. 23944/05, Emily Collns and Ashley Akaziebie v. Sweden 8 March 2007, available at: http://www.unhcr.org/refworld/docid/46a8763e2.html. 5 UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, para. 58, U.N.Doc. A/HRC/31/57 (2016) (by Juan Méndez), § 62. 6 A/HRC/7/3. Manfred Nowak, 2008. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Report of the Special Rapporteur on