No more excuses!

Ending all Harmful Traditional Practices against Girls and Young Women
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Acknowledgements We would like to thank Vijay Rai, Project Coordinator in Plan India, Martin Nkuna, Child Rights Advisor in Plan Malawi and Helen Seifu, Director of the Childrens Legal Protection Centre at the African Child Policy Forum in Ethiopia for their reviews and valuable inputs. We also thank Suvi Halttula and Dorota Gozdecka from Plan Finland for providing us with the Sudan case study and Anni Haataja, Plan Finland, for her proof-reading and important support.

The authors Lalaine Sadiwa Stormorken (author and editor), Human Rights Consultant Katrine Vincent, Research and Advocacy Assistant, Plan Norway Ann-Kristin Vervik, Manager, Human Rights Section, Plan Norway Ruth Santisteban, Senior Human Rights and Development Advisor, Plan Finland

Acronyms ASEAN Association of Southeast Asian Nations CAT United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW United Nations Convention on the Elimination of All Forms of Discrimination against Women CERD United Nations Convention on the Elimination of All Forms of Racial Discrimination CRC United Nations Convention on the Rights of the Child FGM Female Genital Mutilation FGC Female Genital Cutting CCPR United Nations Covenant on Civil and Political Rights CESCR United Nations Covenant on Economic, Social and Cultural Rights SAARC The South Asian Association on Regional Cooperation UDHR Universal Declaration of Human Rights UNFPA United Nations Population Fund UNICEF United Nations Childrens Emergency Fund UN VAC United Nations Secretary Generals Study on Violence Against Children

Front cover photo: Alf Berg, Plan Norway. Design: concorde.no Printed by Digital Copy Studio, Oslo.

This short publication is a preliminary review and discussion about the issue of harmful traditional practices which results in violence, cruel, inhuman and degrading treatment of girls and young women. It surveys the various international treaties and instruments and regional agreements to determine whether they provide adequate protection to girls and young women from harmful traditional practices. A few harmful traditional practices from four selected countries are illustrated. There was no example from Latin America as it proved difficult to get information and data written in English on harmful traditional practices such as those which might be experienced by indigenous children. Some of the findings and recommendations in the UN Study on Violence Against Children are highlighted in this publication. The commentary, views and opinions expressed in this publication are those of the authors and do not necessarily represent the policies of Plan Norway and Plan Finland.

Introduction

In this publication, we have chosen to focus on girls and young women from 018 years old. In many countries and contexts girls may be children in legal terms, but in practice many are leading lives as adult women. A 17 year old girl may be married and have children. Should she be protected as a child or have the autonomy as a woman? The best interest of the child principle in the Convention on the Rights of the Child (CRC) gives us guidance and is a powerful rule if applied properly1. In the process of balancing her rights as a child and a woman, the girls best interest shall always be the primary concern. Furthermore, the girls gradual autonomy must be consistent with her evolving capacities (CRC art. 5), based on her age and maturity (art 12) and other factors. The term harmful traditional practices, is often associated with female genital mutilation and other violent practices which are done as part of customs, traditions, and cultural, social and religious beliefs. However, there are also traditional practices, such as initiation rites for girls performed in some countries, like in Malawi as illustrated below, which do not cause excruciating physical pain but rather subject girls and young women to humiliating and degrading treatment. Such treatment is clearly a violation of girls and young womens right to physical integrity and human dignity. Traditional practices which expose girls and young women to humiliating situations may cause long-lasting mental and psychological harm. The Convention on the Rights of the Child (CRC), in article 19, guarantees protection to children not only from physical violence, but also from mental violence. Furthermore, such practices can be considered as degrading treatment which is prohibited by CRC under article 37. Harmful traditional practices resulting in pain, suffering and humiliation for girls and young women originate from the deeply entrenched discriminatory views and beliefs about the role and position of females in many societies and communities. The differentiation in roles and expectations between boys and girls relegating girls to an inferior position starts from birth and continues throughout their whole life. Harmful traditional practices help replicate and perpetuate the subordinate position
1 Abramson, Bruce, Two stumbling blocks to CRC monitoring: The four general principles and the definition of the child, 2003, www.crin.org

Harmful traditional practices

of women. The issue of harmful traditional practices therefore cannot be addressed without tackling gender discrimination which is at the root of such practices. Although also boys suffer from pain inflicted by some traditional practices, girls are specifically subjected to harmful customary and traditional practices. This is the case concerning for example rites of passage as has been illustrated by a study undertaken by the Malawi Human Rights Commission.2 Girls, young women and mature women all experience gender-based discrimination. The vulnerability of girls and young women stems not only from socially-constructed gender roles but also from discrimination they experience based on their age. The dominant view in most societies is still that children occupy an inferior position both in the family and in society at large. With the multiple levels of discrimination that they experience, girls and young women are relegated to the bottom of power structures and power relations in the family and in the community, thus limiting their influence, if any, on decisions which affect their wellbeing and making them vulnerable to violence and abuse. It is therefore imperative that a gender-based analysis of the situation of girls and young women is given a more nuanced perspective taking into consideration the various levels and forms of discriminatory practices that girls and young women experience at different stages in their lives (age dimension).

India Ranu killed her first two children by strangling them, hours after their birth. Both were girls. Married at the age of 18 in the northern, drought-prone Indian state of Rajasthan, Ranu has been pregnant seven times. Two sons died from infections acquired in infancy, two other pregnancies were terminated because the foetuses were female. Ranu is understandably protective of the small boy that today is her only living offspring. Nevertheless she remains defiant. I will kill other children if they are born girls, she says, adding that she has no money to pay for their weddings. Her husband Muktar, a serviceman, seems unconcerned over the fate of his missing daughters. And why should he be? In districts all over the state, and indeed, all over the country, the elimination of girl children, either through sex-selective abortion or infanticide, goes largely uncensured, undetected, unpunished and unmourned. The girl child is killed by putting a sand bag on her face or by throttling her, explains Ranu, It is not a rare phenomenon. It happens without any hindrance3 Ethiopia Marriage by abduction is a harmful traditional practice in Ethiopia that happens in nearly 70 per cent of the country. In cases where families do not have enough money to pay dowries, some will resort to kidnapping girls and forcing them to marry their sons. One 13-year old girl who is fighting her attacker in court shares her story which began as she was washing clothes with a friend by the river.
2 3 Malawi Human Rights Commission (MHRC) (2005). Cultural Practices and their Impact on the Enjoyment of Human Rights, Particularly the Rights of Women and Children in Malawi 35-36 UNFPA (2005). The State of the World Population 2005. The Promise of Equality: Gender Equity, Reproductive Health and the Millennium Development Goals. http://www.unfpa.org/swp/2005/presskit/docs/india.doc

Real life experiences

I ran to my friend and then they came and pulled her to the ground. They gagged my friend so she couldnt scream. . .Two of them held her and the other three dragged me away. They took me to a house at sunset and after three hours they took me a long distance. When I tried to sit, they beat me...After a week, I lost my virginity. She pretended to be sick and was eventually returned to her family. Her attackers family and her own reached some sort of agreement to return her, but she would not go because she wanted to stay and study in school to become a secretary. I dont feel ashamed. I want there to be strong measures taken, and he should be punished. Our traditions, customs and norms support the men this is my personal opinion. I hope it will change and make both boys and girls equal.4
4 Excerpt from UNICEF-Ethiopia Country Report. 2004 http://www.un.org/womenwatch/daw/egm/elim-disc-viol-girlchild/ UNICEFEGM_GirlaboutGirlsFINAL.pdf

Photo: Bente Kristensen, Plan Norway

Malawi In Malawi, there are several types of initiation rites that girls go through. The details of what happens in these ceremonies is not known by many people, as some of these rites are practiced in the presence of only those that have undergone the initiation. In the Southern Region, girls from 6 years of age are taken to an isolated place, which is usually a house within the village, for confinement for a period of two to four weeks, for purposes of counselling them. In the case of the initiation organized by Christian/Islamic beliefs, the place of confinement is a church or a mosque. During the evening of the day before the girls are taken to this isolated place, which in Mulanje is called thedzo and tsimba in Mangochi, the namkungwis (the girls counsellors), accompanied by the kholodzolo (women/girls who have already undergone the initiation), perform a dance through which pieces of advice are given to the girls. This includes teaching the girls how to offer the best sex to their male counterparts. The women perform this dance naked (covering the vaginal area with a leaf) and, while lying on their back, they wriggle their waists in simulation of the process of having sex. As they do this people from the community are free to watch, and when they are amused, they ululate and give the particular girl money (kufupa) by placing money directly on the vaginal area. During this time the songs, usually in obscene language, are sung. Each song has a particular message to convey to the girls. It is said that the songs are a channel through which malangizo (advice) to the girls is conveyed. At the thedzo, the girls are taught similar things as the girls in the Central and Northern Regions are taught. After the four weeks or so at the thedzo, the girls first converge at the Chiefs house where, just as what happens in some of the Central Region areas, a ceremony is organized for the girls. The purpose of this ceremony is to demonstrate what the girls learnt at the thedzo. The demonstrations include dancing on a wooden door, which men carry on their shoulders on a voluntary basis. The girls perform this dance while naked and everyone is allowed to watch the dance. There is ululation for the best dancers, and any person is free to touch the breasts of any girl during this dance upon giving her a gift, which may be in the form of money. At the end the girls are advised to identify any boy to have sex with to avoid kutuwa (getting pale) and they call this practice kusasa fumbi or kuchotsa fumbi (removing dust).5 Another practice is called thimbwidza which is the type of initiation practiced in the Southern Region of Malawi (prevalent in the districts of Mulanje and Mangochi) for a girl who becomes pregnant before going through chindakula (initiation that girls undergo when they start menstruating and the emphasis of the advice at this time is for the girls to avoid having sex so that they do not get pregnant). They kill a dog whose intestines they take out to put over the girl as a sign of the shame the girl has brought on herself and on her parents. They also take her to a river for a bath very early in the morning where during the process of counselling the women go to the extent of beating the girl in order to impress on her the desirability of heeding advice from elders.6

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MHRC 37-38 MHRC 39

Sudan As I was discharging my duties, I heard loud cries and wailing coming from a hut. We abandoned our lesson and rushed to the noise. It was the hut of Sheikh Hajj al Basher, a respectable, good-hearted man who was married to a woman by the name of Zainab. Four years after their marriage, Allah had granted them a baby girl, whom they named Amna. When the girl was eight years old, Zainab convinced her husband that Amna should undergo female genital mutilation as it was a known custom and would be a purification. They believed it was in line with their religious dictates. The midwife came carrying her black box. Amna regarded her parents with apprehension. Then there was the noise of singing and jubilation as everyone examined the future bride, with a pious family and good ancestry. In the midst of the noisy crowd, the midwife proceeded with the cutting despite the cries and wailing of the small girl calling on her mother to rescue her. Please mother, rescue me please! And then calling on her father, Please father, rescue me! Tears of sad happiness rolled from the eyes of the mother, hoping to see her only daughter a bride. But all of a sudden the girl fell silent. There were no cries...no wailing...the mother called her daughters name: Amna, Amna, talk to me! Amna did not respond. She was dead 7

International human rights treaties and instruments

The Universal Declaration on Human Rights (UDHR) The UDHR from 1948 is a pioneer, as it is the first universally agreed human rights standard. Most of the content in the Declaration is today considered to be customary law. Its preamble recognizes that inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. In article 1, equality and dignity is reiterated; All human beings are born free and equal in dignity and rights. Human Rights have their origin in natural law, with dignity, equality and non discrimination as the philosophical foundation. Convention on the Rights of the Child (CRC) The Convention on the Rights of the Child (CRC) is the most widely ratified UN human rights treaty. The CRC defines the child, for the purposes of the Convention, as every human being below the age of 18, unless the law applicable to the child, majority is attained earlier (article 1). If national legislation sets minimum age below 18 years, States must take the entire Convention into account and particularly its general principles.8 Discrimination on the basis of sex or any other ground is not permitted (article 2), the best interest of the child must be the primary consideration (article 3), the child has a right to be heard, and the views of the child given due
7 8 UNICEF (2005). Sudan: Religious leader speaks out against female genital mutilation/cutting http://www.unicef.org/ infobycountry/sudan_29886.html UNICEF (2002), Implementation Handbook for the Convention on the Rights of the Child, rev. ed. June 2002, 6

weight in accordance with the age and maturity of the child (article 12) and the childs right to life, survival and development to the maximum extent possible must be ensured (article 6). An equally important umbrella right concerns the rights and duties of parents. The CRC article 5 prescribes the role of parents and other caretakers in the realisation of the rights of the child; States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. The Committee on the rights of the child has not addressed how this provision should be interpreted and it could easily be in conflict with the best interest of the child. In practice, parents are often de facto rights holders of their childs rights and claim to know best, whats best for their child. The answer to the dilemma is that parents should exercise their responsibilities over the child in a way that is consistent with upholding the childs rights as enunciated in the Convention.9 According to the CRC article 24.3 States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Traditional practices are often carried out without the girls
9 Banda, Fareda (2005) Women, Law and Human Rights, An African Perspective, Oxford 2005

Photo: Alf Berg, Plan Norway

informed consent.10 She may be too young to give an informed consent, or the practice is carried out against her will in the name of tradition or custom. Although most harmful traditional practices involve violence, it is not a requirement in this article. The health risk is the central consideration. The fact that traditional practices have been explicitly mentioned in the health article and not in the violence articles of the CRC, gives potential room for misinterpretations. In the case of FGM, an evaluation by the Norwegian Agency for Development Cooperation (NORAD)11 of intense efforts to eliminate the practice over the past 10 years has shown disappointing results in many African countries. One interesting fact is that there is a significant increase of medicalization of FGM. FGM practitioners have moved from severely harmful to less harmful procedures. One of the main reasons could be that the sector has been reluctant to use a human rights based approach in their interventions, as well as reluctant to state that FGM is a form of torture/violence. The fear of accusations of being insensitive to culture and tradition often prevents development workers from taking a strong position on the issue. The CRC Committees General Comments, on adolescent health12, HIV/AIDS and the rights of the child13 and implementing child rights in early childhood14 all make a specific reference to harmful traditional practices as a serious violation of the Convention. Article 19 of the CRC concerns the childs right to protection from all forms of violence. The provision has a broad definition of violence and includes all forms of physical or mental violence, injury or abuse, neglect and negligent treatment, maltreatment or exploitation, including sexual abuse,.. Harmful traditional practices are covered in this provision when they involve any form of physical or mental violence.15 This was reaffirmed in the UN Secretary Generals Study on Violence against Children. The CRC article 37 (a) provides each child the right to be protected from torture or other cruel, inhuman or degrading treatment or punishment. The provision is absolute; no child shall be subjected to.. and is equivalent to the Universal Declaration of Human Rights article 5 and the International Covenant on Civil and Political Rights article 7. The provision applies to all children in all places, in all circumstances and at all times. In the CRC Committees General Comment no. 8, on corporal punishment and other cruel or degrading forms of punishment (articles 19, 28.2 and 37)16, the Committee defines corporal or physical punishment as any punishment in which physical force is used and intended to cause some degree of pain and discomfort, however light. In addition, there are other non-physical forms of punishment that are cruel and degrading and thus incompatible with the Convention. These include punishment which belittles, humiliates, scares or ridicules the child. There are many examples of harmful traditional practices which fall within this definition such as
10 11 12 13 14 15 16 UNICEF (2002) 364 NORAD (2007). The Norwegian International Effort Against Female Genital Mutilation Committee on the Rights of the Child (2003). General Comment 4, CRC/GC/2003/4 Committee on the Rights of the Child (2003) General Comment 3, CRC/GC/2003/3 Committee on the Rights of the Child (2005) General Comment 7, CRC/C/GC/7/Rev.1 UNICEF (2002) 271 Committee on the Rights of the Child (2006) General Comment 8, CRC/C/GC/8

Convention on the Rights of the Child Article 2 1.States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians race, colour sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Article 24 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Article 37 State Parties shall ensure that: a. no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

those mentioned in the study of the Malawi Human Rights Commission.17 One may also categorise the more known or common forms of corporal punishment, such as smacking, spanking and shaking children, as harmful traditional practice. Due to the fact that corporal punishment is a universal practice, it is not related to just one specific culture or context. Some harmful traditional practices do not violate the right to life, survival and development to the maximum extent possible (art 6), the right to freedom from torture, violence (art. 37 and 19) or the right to the highest attainable standard of (physical and mental) health (art 24). But they may violate the childs right to privacy. According to article 16 of the CRC, the child has a right to be protected from arbitrary interference by both state and private parties. The provision is equivalent to the UDHR article 12 and identical to the International Covenant on Civil and Political Rights (CCPR) article 17; No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation (1) and The child has the right to the protection of the law against such interference or attacks (2). Privacy guarantees the respect for the individual existence of the human being. It expands the right to exist physically, spiritually and legally, to also include respect for the girls individual nature, appearance, honour and reputation. The term privacy includes a right to identity, personal integrity, intimacy, autonomy and right to ones own body.18 In 1995, the CRC Committee devoted its Day of general discussion to girls and concluded that the CRC, together with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), should constitute an essential framework for a forward-looking strategy to promote and protect the fundamental rights of girls...19 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) CEDAW does not have any explicit provision concerning harmful traditional practices or violence, but in General Recommendation no. 19 (1992) the Committee affirms that all violence against women and girls is a form of discrimination against women as set out in article 1 and that discrimination is a major cause for such violence. The committee defines gender-based violence against women as violence that is directed against a woman because she is a woman, or violence that affects women disproportionately. The harmful practices that we describe in this brochure are all gender-based violence. Article 5 of the Convention urges State Parties to take measures to eliminate prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women, realizing the role of customs and traditions in perpetuating violence against girls.

17 MHRC 18 Nowak, Manfred (1993). UN Covenant on Civil and Political Rights, CCPR Commentary. Strasbourg 1993 19 CRC 8th session CRC/C/38

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) In its Preamble, the Convention Against Torture (CAT) states that it desires to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world and in article 1, it defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official The Human Rights Committees General Comment no. 7/16, 2, went further by adding that it is also the duty of public authorities to ensure protection by the law against such treatment even when committed by persons acting outside or without any official authority. Manfred Nowaks (UN Special Rapporteur on Torture) definition of torture identifies 3 elements20: intent, fulfilment of a certain purpose and /or the intensity of severe pain. On the other hand, Cruel/Inhuman treatment or punishment includes all forms of imposition of severe suffering that do not qualify as torture for lack of one of the essential elements. As for acts defined as degrading treatment or punishment, severity of the suffering is of less importance than the humiliation of the victim, regardless of whether this is in the eyes of others or those of the victim himself or herself. Harmful traditional practices have seldom been characterised as torture. However, the CAT Committee has addressed the issue in a few cases:
20 Pinheiro, Paulo Srgio (2006). World Report on Violence Against Children (UN Secretary Generals Study on Violence against Children). Geneva, United Nations

From Plan Guinea. Tattoed children. According to Plan Guinea, tattooing is the local phrase for circumcision. Thus, the very young girls have just been circumcised.

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CAT 36th session Togo: While it takes note of legislation prohibiting female genital mutilation, the Committee remains concerned by the persistence of this practice in certain regions of Togo (article 16). The State party should take the necessary steps to eradicate the practice of female genital mutilation, including through nationwide awareness-raising campaigns, and to punish the perpetrators of such acts. CAT 31st session Cameroon: The Committee is also concerned about: (b) The absence of legislation banning female genital mutilation; (c) The fact that the Criminal Code permits the exemption from punishment of a rapist if he subsequently marries the victim. The traditional and adult focused definition of torture needs to be expanded to include a child-centred perspective. The threshold of pain and suffering amounting to torture will vary with age, sex, health, maturity and personal circumstances of the victim. Due to the fact that children are more vulnerable to the effects of violence than adults, the threshold is likely to be lower for children than adults.21 While the Special Rapporteur on Torture has primarily focused on torture in the public sphere, the Special Rapporteur on Violence against Women stated, in her report to the Human Rights Council in 2007, that in order to overcome the public/ private dichotomy, we should recognize all those forms of violence against women that entail severe pain or suffering, whether physical or mental e.g. female genital mutilation as torture.22 Due to the traditional and narrow interpretation of human rights law there are still remnants of the public/private dichotomy. International monitoring mechanisms, such as the Special Rapporteur on Torture should do more to articulate the inclusion of violence against girls and women into his mandate. Convention on Civil and Political Rights (CCPR) Article 7 of the CCPR, states that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The Human Rights Committee has made two General Comments on the CCPR article 7. The last one from 1992 replaces and further develops the one from 1982. The Committee states that the aim of article 7 is to protect both the dignity and the physical and mental integrity of the individual. The State Party has an absolute obligation to protect everyone against torture or other cruel, inhuman or degrading treatment or punishment, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity Article 7 is non-derogable, meaning that it cannot be suspended even during public emergencies. No justification may be invoked to excuse a violation of article 7. The Declaration on the Elimination of Violence against Women The World Conference on Human Rights (Vienna 1993) reaffirmed that womens rights are human rights and led to the adoption of the Declaration on the Elimination

21 OMCT (2001). Children, torture and other forms of violence, Facing the facts forging the future. 22 Ertatrk, Yakin (2007). Intersections between culture and violence against women, Report of the UN Special Rapporteur on violence against women, its causes and consequences, 17. January 2007, A/HRC/4/34, 21

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of Violence against Women23 which requires States to condemn violence against women and to not invoke custom, tradition or religion to avoid their obligations to eliminate such violence. The Declaration defines violence against women as any act of gender-based violence that results in, or is likely to result physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowryrelated violence, marital rape, female genital mutilation and other traditional practices harmful to women.. (article 2.a). Article 4 requires States Parties to condemn violence against women and to not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should 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. Agreed Conclusions of the Commission on the Status of Women on the Critical Areas of Concern of the Beijing Declaration and Platform of Action 19962005 In 1998 violence against women and girls were two of the four critical areas of concern addressed by the Commission on the Status of Women at its 42nd session. Both areas of concern included the eradication of all customary or traditional practices, particularly FGM, that are harmful to or discriminate against women and girls and that are violations of womens human rights and obstacles to the full enjoyment by women of their human rights and fundamental freedoms. By viewing harmful traditional practices as both violence as well as a form of discrimination, the scope of State Parties obligations broadens. According to the Special Rapporteur on Violence against Women24, one should not de-link violence against women and gender inequality because by doing so, one risks shifting the problems and addressing symptoms rather than root causes. In 2007, the Commission devoted its session to the elimination of all forms of discrimination and violence against girls. The outcome document reaffirms States obligation to eliminate all harmful traditional practices.25

Judith is the leader of the child protection club in her community in Zambia.
Photo: Bente Kristensen, Plan Norway.

Regional human rights treaties and instruments

The African Charter on the Rights and Welfare of the Child The African Charter on the Rights and Welfare of the Child is very clear in that customs, traditions, cultural and religious practices may not be used as excuses for violating the
23 Adopted by the General Assembly in 1993 24 Ertrk, Yakin. Human Rights Council Panel discussion on female foeticide and girl infanticide. http://www.crin.org/resources/ infoDetail.asp?ID=12840&flag=news 25 Commission on the Status of Women. Report from the 51st session http://daccessdds.un.org/doc/UNDOC/GEN/N07/282/48/ PDF/N0728248.pdf?OpenElement

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rights of children as enshrined in the Charter. While it calls in its Preamble for the consideration of the virtues of cultural heritage, historical background and the values of African civilization when reflecting upon the rights and welfare of the African Child, it discourages any custom, tradition, cultural and religious practice that is inconsistent with the rights and obligations in the Charter. Furthermore, article 21 forcefully and unequivocally obliges State Parties to take all measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child, particularly those which endangers the health or life of the child as well as those practices which are discriminatory to the child on the grounds of sex or other status. Non-discrimination (including on the grounds of sex) is a key principle in the application of the provisions of the Charter as stipulated by article 3. In addition to the above, article 16 of the African Childrens Charter prohibits all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse. The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa is in line with the African Charter on the Rights and Welfare of the Child concerning the prohibition of violence against girls (the Womens Rights Protocol defines women as persons of female gender, including girls) including those grounded on customary and traditional practices. In the Protocols Preamble, it recognizes the crucial role of women in the preservation of African values based on principles of equality, peace, freedom, dignity, justice, solidarity and democracy. This can be taken to mean that customs, traditions and cultural practices reflecting African values which run contrary to the principles mentioned above are not condoned by the Protocol. Furthermore, article 5 of the Protocol obliges States Parties to prohibit and condemn all forms of harmful practices which have a negative effect on womens human rights. In addition, articles 3 and 4 call on States Parties to protect women from all forms of violence and prohibit all forms of exploitation, cruel, inhuman or degrading punishment and treatment both in the public and private spheres. As part of the measures to be taken by States Parties, peace education must be promoted in order to eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women Convention of Belem Do Para (1994) affirms that violence against women constitutes violation of their human rights and fundamental freedoms and impairs or nullifies the enjoyment of, among others, the right of the woman to have her life respected, the right to have her physical, mental and moral integrity respected, the right to personal liberty and security or the right to be free from torture. It also recognizes that violence against women is an offence against human dignity and a manifestation of historically unequal power relations between women and men.

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Photo: Alf Berg, Plan Norway

The Convention includes a wide definition of violence against women. Violence is understood as every form of physical, sexual and psychological violence regardless whether it happens in private, in the community or in public and regardless whether the perpetrator is a private person, a public institution or an agent of the state. The Convention sets the right of every woman to be free from any of the above mentioned forms of violence. The right to be free from violence is constructed widely and includes the right to be free from any form of discrimination and the right to be valued and educated free of stereotyped patterns of behaviour and social and cultural practices based on concepts of inferiority or subordination. The document is very progressive and sets a wide scope of obligations on the State as the duty bearer recognized in the Convention. Among others, the State is obliged to refrain from engaging in any acts of violence, investigate and impose penalties for violence against women with due diligence, take all appropriate measures to amend existing laws and modify customary practices, which sustain violence against women, enact comprehensive legislation to prevent, punish and eradicate violence against women, take appropriate measures to protect women from harassment, intimidation or threats and offer appropriate legal procedures for women to exercise their right to freedom from violence. Many of the aspects apply also to girls, and the Inter-American Commission of Women underlines the importance of fighting trafficking of women and children and the initiative of incorporating the Conventions gender perspective into the InterAmerican Childrens Institutes programmes. The South Asian Association on Regional Cooperation (SAARC) Convention on

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Regional Arrangements for the Promotion of Child Welfare in South Asia While the South Asian Association on Regional Cooperation (SAARC) Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia enjoins States Parties to ensure that their national laws protect the child from any form of discrimination, abuse, neglect, exploitation, torture or degrading treatment, trafficking and violence (article IV, 3a), it does not address the issue of customs, traditions and cultural practices when it results in among other things discrimination and violence against children and generally when it negatively impacts on childrens enjoyment of their rights. As to the issue of discrimination based on gender, article III, 7 compels States Parties to always consider gender justice and equality as key aspirations for children. Association of Southeast Asian Nations (ASEAN) Declaration on the Elimination of Violence against Women In a bid to eliminate violence against women in the region, the Association of Southeast Asian Nations (ASEAN) decided to take eight bold measures to strengthen regional cooperation on the issue by signing the Declaration on the Elimination of Violence Against Women in the ASEAN Region in 2004. These measures include greater regional and bilateral cooperation in research, analysis and dissemination of data on the incidents of violence against women and on the impact and effectiveness of policies combating the problem, amending or reinforcing domestic legislation to prevent violence against women, empowering women and strengthening their economic independence and to supporting initiatives undertaken by womens organizations and non-governmental organizations on the elimination of violence against women. Further, the Foreign Ministers from the ASEAN region agreed to formulate mechanisms focusing on the four areas of concern of violence against women, namely, providing services to fulfil the needs of survivors, formulating and taking appropriate responses to offenders, understanding the nature and causes of violence against women and changing societal attitudes and behaviour. Although the Declaration committed the ASEAN to eliminate all forms of discrimination against women, it does not address the issue of harmful traditional practices as a reason for or a consequence of discrimination against women.26

Harmful traditional practices, international human rights law and domestic law
India The low status of women has resulted in a widespread practice of sex-selective abortions and killing of girl babies in India. A girl child is not welcomed like a boy child, and many families cant afford bringing a girl child into the world27. The growing pressure to downsize families and a deep-rooted cultural preference for boys has made sex-selective abortions easily available. This is despite the fact that sex-selective
26 ASEAN Declaration on the Elimination of Violence Against Women in the ASEAN Region http://www.aseansec.org/16189.htm 27 Plan International, The Gender Gap in India http://www.plan-international.org/wherewework/asia/india/ourwork/gender/

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abortions are illegal (Pre-natal Diagnostic Techniques PNDT Act of 1994 and its amendment in 2002). The prolonged norm of favouring boys has left whole villages without women, young men without wives and trafficking is booming. The issue of sex-selective abortion and gender-based infanticide has predominately been an urban problem caused by costly dowries, greater value of boys in Indian religion and culture, and the fact that only sons can give the last rites to their parents. But due to modern technology (ultrasonography) being available at a very low cost ($ 12.5 for a test) and at all places including the rural areas (through mobile vans) the trend of sex selective abortions has penetrated the remote areas as well. There are advertisements in very small towns (why to waste Rs 100000 as dowry when you can have the test done in Rs 500 only now). Till now there have been only 7 convictions (as per central supervisory board at national level) and only single judgement in all these years. Experts point to increasing reports of rape and violence against women as evidence that the skewed gender balance is taking its toll on Indian society. In certain areas of

Photo: Alf Berg, Plan Norway

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India the female to male ratio has decreased to below 800 women per 1000 men28 Female infanticide is not covered by one particular act or provision of law like foeticide is (PNDT Act of 1994), but infanticide is a violation of many provisions both in domestic law, as well as international human rights law. Female infanticide is a violation of article 21 of the Indian Constitution granting every person the right to life. Infanticide is treated as homicide under the Indian Penal Code. Indias National Plan of Action for the Girl Child (1991- 2000) has as two of its objectives to prevent cases of infanticide and end gender disparity in infant mortality rate29 India is State Party to the CRC, CCPR, CEDAW and CESCR. Female infanticide is a violation of article 6 of the CRC which guarantees each child the right to life as well as the survival and development of the child and of article 6 of the CCPR providing for every persons right to life to be protected by law. Female infanticide is a violation of article 3 of CEDAW, guaranteeing the enjoyment of human rights and fundamental freedoms on a basis of equality with men, article 5 (a) urging state parties to modify social patterns of men and women to achieve the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. The CRC Committee in 2004 remained concerned that domestic legislation, and in particular religious and personal laws which govern family matters, are not yet fully in conformity with the provisions and principles of the CRC. The Committee is further concerned that the National Charter for Children does not adopt a child-rights-based approach and does not explicitly include all rights and principles of the Convention. The National Plan for Action for the girl child and the Platform for action is a positive step in protecting the rights of girls. However there are still discriminatory social attitudes and harmful traditional practices towards girls, including low school enrolment, high drop out rates and early and forced marriages. The CRC Committee urges the State to take action related to gender discrimination, including imposing sanctions to end the practice of sex-selective abortions (foeticide) and female infanticide30. The CEDAW Committee in 2007 expressed concern about the continuing deterioration in the ratio of females to males despite the prohibition of sex selection Act. They are concerned this Act will punish women who are forced into seeking sex-selective abortions. Legislative reform to eradicate customary practices which discriminate against women has not brought about the desired changes in the role and position of women in India. The Committee calls upon the State Party to ensure that adequate mechanisms and procedures for effective implementation and monito ing of the Pre-natal Diagnostic Techniques (PNDT) Act be established, including safeguards to prevent criminalization of women who are pressurized into seeking sex-selective abortions31. Ethiopia Harmful traditional practices pose a big challenge in Ethiopia because they infringe on many rights of girls and young women. Marriage by abduction is one such practice.
28 UNFPA (2003), MissingMapping the Adverse Child sex-ratio in India. http://www.unfpa.org.in/publications/16_Map%20 brochure_English.pdf 29 Tandon, Sneh Lata and Sharma, Renu (2006). Female Foeticide and Infanticide in India: An Analysis of Crimes against Girl Children. International Journal of Criminal Justice Sciences. Volume 1 Issue 1 January 2006 30 CRC 37th session CRC/C/15/Add.228 31 CEDAW 37th Session. CEDAW/C/IND/CO/3

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Child drawing from Kenya. What I fear the most

The practice is carried out in many ways, but one common way is for the girl to be carried away by a group of which one member is the would-be husband. The girl is taken to a hideout where she is raped and kept hidden. The girl is no longer a virgin and thus not marriageable to anyone else. Family members on both sides meet and discuss marriage between the victim girl and the perpetrator man.32 In an environment where abduction and other acts of violence are rooted in traditions and culture, it is very unlikely that the girl will report such case. Many parents believe that one way of protecting their girl child from abduction and rape is to marry their child when young. The idea that a married girl will not be raped and kidnapped encourages them to marry their daughters.33 There are indicators that although
32 National Committee on Traditional Practices of Ethiopia(NCTPE) (2005). Old Beyond Imaginings: Ethiopia Harmful Traditional Practices. 134 www.ntcpe-fgm.net/downloads/obi.doc 33 Plan Ethiopia (2006). Country Program Report

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marriage by abduction has a long history in Ethiopia, it has increased in the recent past because of socio-economic changes such as poverty.34 Although it can be said to have taken on a modern form, the root causes are still enshrined in the patriarchal attitudes of the community, emphasised by the inferiority of women. The Ethiopian legal system is a federal arrangement, with a federal constitution and state constitutions. All laws, both customary and written, are subject to the federal constitution. The federal constitution fully recognizes human rights and all human rights instruments ratified by Ethiopia are part of the federal constitution. Ethiopia has ratified the CRC, CEDAW and the African Charter on the Rights and Welfare of the Child making these treaties part of the federal constitution. Article 9(4) of the Ethiopian Constitution provides that all international agreements entered into are an integral part of the law of the land. However, reference in courts to international human rights standards is very minimal at best, non-existent at worst.35 Any customary law or regional law that contradicts the provisions of the federal constitution are considered invalid.36 The Revised Penal Law, adopted by the National Parliament in July 2004, replaced the Penal Code of 1957 and increased the penalty for rape, criminalized FGM and raised the minimum age for marriage to 18 years.37 Marriage by abduction is a violation of CEDAWs article 5 (a), requiring States Parties to take all measures to modify the social and cultural patterns of men and women, with a view to eliminating prejudice, and customary and all other practices that are based on the inferiority of women. It is further a violation of article 16 (1) stating that men and women shall have the same rights to enter into marriage and choose a spouse, and article 16 (2) where marriage of a child is said to have no effect. Marriage by abduction is further a violation of article 34 of CRC, where the States Parties undertake to protect the child from all forms of sexual exploitation, and article 35, where States Parties shall take all appropriate measures to prevent the abduction of children for any purposes, and article 37, stating that no child shall be subjected to torture or other cruel, inhuman or degrading treatment. One of the barriers to the enforcement of the law penalising harmful traditional practices in local courts is that judges are predominantly male and very traditional. Male judges prefer the old civil code and resist change38 Malawi As the study done by the Malawi Human Rights Commission (MHRC)39 shows, traditional practices are widespread and risk many of the rights of women and children. A number of such practices are connected to rites of passage, including initiation rites of girls. Although boys arent exempt from such practices, the study done by the MHRC shows that most rites of passage revolve around preparing girls for marriage and an adult life. There is an old saying mwamuna sauzidwa (a man needs not to be told what to do),40 emphasising the patriarchy in Malawian society. The initiation of girls has
34 NCTPE 133 35 Zuberi, Farhana (2005), Assessment of Violence Against Children in Eastern and Southern Africa Region: Result of an initial desk review for the UN Secretary Generals study on violence against children. 15 www.violencestudy.org/IMG/pdf/Desk_ Review-3.pdf 36 CEDAW 30th session. CEDAW/C/SR.645 37 Zuberi 62 38 CEDAW 30th session. CEDAW/C/SR.645 39 MHRC 40 MHRC 36

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as its principal purpose to counsel the girls in what to do as adults, and the practices usually begin with the attainment of puberty.41 The practices are plentiful and diverse, including thimbwidza and chinamwali as mentioned earlier. Initiation rites may not inflict physical pain on the girl, but they degrade and belittle her. Although the practices associated with a girls initiation have not been included as violation of article 37 of the CRC by the CRC Committee in its review of Malawi in 2002, it can be relevant to look at such practices as falling within the scope of article 37. To the girl child initiation rites can be both degrading and inhuman and thus a violation of article 37. Article 23 of the Constitution of 1994, amended in 200142 guarantees the rights of the child in 5 areas, where article 23 (4) states that the child has the right to be protected from economic exploitation or any treatment, work or punishment that is, or likely to be hazardous; interfere with their education; or be harmful to their health or to their physical, mental or spiritual or social development.43 There is currently a review of the Children and Young Persons Act of 1970 by the Malawi Law Commission, with a recommendation to repeal the present Act and replace it with a new Act, entitled the Child Act. Malawi has a dualist system requiring an act of parliament to incorporate international treaties into domestic law. To date, no international treaty has been domesticated and the courts have taken no consideration for international law when interpreting legislation.44 Malawi had ratified the CRC, CEDAW, the African Charter on the Rights and Welfare of the Child and the Womens Protocol to the African Charter, but as mentioned above, these treaties have not been incorporated into domestic law. The CRC Committee in its review of Malawis State report in 2002 expressed concern that the Constitution of Malawi does not comply with the CRC, and domestic legislation including customary law does not reflect the will of the CRC. The Constitution protects the right of every person to participate in the cultural life of his or her choice, but the concern of the Committee is that the existence of harmful practices associated with culture is thus legitimized.45 Likewise, the CEDAW Committee expressed concern about this fact, and the prevalence of patriarchal ideology with firmly entrenched stereotypes and the persistence of deep-rooted cultural norms, customs and traditions46. Sudan Sudan is one of the countries where FGM/C is most widely spread. According to UNICEF,47 an estimated 90% of married women between the ages of 15-49 in Sudan have experienced FGM/C and 58% of women report having at least one of their daughters circumcised. Cultural tradition is the most common reason behind FGM/C in Sudan. It is seen as an initiation into adulthood and the day when FGM/C is performed as the most important day in the girls life celebrated with many different festivities. The girl is decorated with henna and she receives many gifts. Most importantly, after FGM/C
41 42 43 44 45 46 47 MHRC 35-39 Zuberi 97 Zuberi 97 Zuberi 15 CRC 26th session. CRC/C/15/Add.174 CEDAW 35th session. CEDAW/C/MWI/CO/5 UNICEF (2007). The State of the Worlds Children

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the girl is seen as a full member of society. FGM/C is also seen as an important mean to control womens sexuality. FGM/C guarantees the respect and value of the girl as a bride. The girls who have not gone through FGM/C are commonly forced to deal with stigmatization within their own community. They are seen as unclean and placed under huge social pressure. Sudan was the first African country to outlaw FGM/C. It was condemned by the Sudanese Medical Service already in the 1930s and legislation to outlaw FGM/C was enacted in the 1946 Penal Code. The Code prohibited infibulations, but permitted the Sunna (type I). The law was ratified again in 1957, when Sudan became independent. Despite this achievement, in practice during the period when the law was in force it was never enforced and there was never any conviction for the crime of conducting FGM/C. Problems concerning punishing FGM/C were numerous. One of them was the fact, that there was no definite agreement what practices were allowed as Sunna. Some interpreted it as type I, according to the provisions of the Penal Code48 but many people, especially excisors described also more severe forms as Sunna. In 1991, the government affirmed its commitment to the eradication of the traditional form of FGM/C. The 1993 Penal Code, however, does not mention FGM/C, leaving its status unclear. Sudan has ratified the CCPR, CESCR, CRC and the African Charter on Human and Peoples Rights. The CRC Committee has observed that the main problem is that Sudan has not made sufficient efforts to combat discrimination against girls and women. Although FGM/C is the cruellest and severest of the discriminatory practices, it is only one of many, which touch Sudanese women in their daily lives from birth to death. It merely reflects the inferior position of women in the Sudanese society. Daily encountered arbitrary decisions about their bodies, such as determination of puberty or virginity testing when suspected of pre-marital sexual contacts, do not empower women and do not encourage them to fight for their own rights or to understand their own position as right-holders. Terms like right to dignity or freedom from cruel, inhuman or degrading treatment may be abstract terms for subordinated women. Moreover, the fact that judiciary and decision making levels of Sudanese society are dominated by men, whom in most cases hold conservative views on women, make it mostly impossible to challenge the violation of rights. Women may not be willing to talk about their tragedies in the male dominated court room. Violence against sexuality and sexual integrity are difficult to unmask before authorities. And many women, although having suffered the procedure, do not perceive it as a violation of their rights. It is worth noting that article 32, paragraph 3 of the Interim Constitution of Sudan (2005) states that The State shall combat harmful customs and traditions which undermine the dignity and the status of women. Furthermore, the Penal Code 2003 under the Laws of New Sudan (set of laws for South Sudan) provides penalties for FGM, but not very detailed ones. These laws are binding for the interim period in South Sudan only. In section 269 (Cruelty to Children), it is stated that Whoever having the charge
48 Penal Code 1957: Whoever voluntarily causes hurt to the external genital organs of a woman is said, save as hereafter excepted, to commit unlawful circumcision. Exception: It is not an offense under this section merely to remove the free and projecting part of the clitoris. Whoever commits unlawful circumcision shall be punished with imprisonment for a term which may extend to five years or with a fine, or both.

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or care of a child of under eighteen years of age or being in a position of authority over him wilfully ill treats or neglects him in such a way as to cause him unnecessary suffering, commits an offence and shall on conviction, be punished with imprisonment for a term not exceeding three years or with fine or both. And, if the ill-treatment or neglect results in serious injury to health of such child, the offender shall be punished with imprisonment for a term not exceeding five years or with fine or with both. In section 284a (Female Circumcision), it is stated that Whoever makes or causes female circumcision to be done commits an offence and shall on conviction, be punished with imprisonment for a term not exceeding ten years or with fine, or with both.

Some of the challenges and recommendations

1. Resolving the conflict between right to culture/right to participate in cultural life and other human rights Discourses on harmful traditional practices can strike very sensitive chords and can evoke strong responses. This is understandable as cultural and traditional practices define ones identity and are important in creating a sense of belonging and pride as well as promoting social cohesion. A criticism of cultural and traditional practices, harmful or not, can generate negative reactions from communities which adhere to such practices. Criticisms, especially from the outside, are seen as value judgments, and indeed they are. The question is what set of values and standards may legitimately be used to interrogate cultural and traditional practices. The use of the international human rights framework in examining cultural and traditional practices attracts the risk of criticism from cultural relativists (or what others refer to as cultural absolutists49). However, there are no other norms and standards which are more internationally recognised than those articulated by the Universal Declaration of Human Rights (1948), considered international customary law, and the core UN human rights treaties. Although the set of values that they contain are based on common human values found across cultures, the application of such norms and standards need to be contextualised. The cultural relativist approach offers a narrow space for changing cultural and social norms, thus preserving the status quo. There are both positive and negative aspects of every culture, both in developing and developed countries. There are cultural and traditional practices which promote and support human rights values and there are those which contradict human rights.50 A romanticised notion of culture is not a good starting point for discussions as it confuses or reduces right to traditional, good to old and obligatory to habitual.51 Respecting other peoples cultures and traditions is important but is not tantamount to tolerating practices which are detrimental to the physical and mental well-being of girls and young women.
49 Cultural absolutism as articulated by Rhoda Howard-Hassmann in Cultural Absolutism and the Nostalgia for Community, 15 Human Rights Quarterly 315 (1993) 50 The study done by the Malawi Human Rights Commission (2005) referred to a study undertaken by Ntata and Sinoya (1999) which examined customary law and the UN Conventions on Women and Childrens rights and found that there were more cultural practices that contradicted or were in conflict with CEDAW and CRC than those which complementd the Conventions. 51 One of the problems with substantive or absolutist cultural relativism identified by Jack Donnelly in The Relative Universality of Human Rights, Human Rights Quarterly 29 (2007) 281-306

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The right to culture or to participate in cultural life is often invoked by those who defend the necessity of preserving traditional practices including those which impair the well-being of girls and young women and infringe on their rights. It is true that the importance and necessity of practicing ones culture and the right to culture are recognised in international human rights instruments.52 However, the enjoyment of the right to culture or practice cultural life should not result in the negation of the other rights contained in the various international human rights treaties and instruments and the nullification of the intent and spirit of the rights protected in such treaties and instruments. The Declaration on the Elimination of Violence against Women and CEDAWs General Comment No. 19 on Violence Against Women make it clear that, at the beginning of the twenty-first century, the action of States Parties may be measured against international standards that clearly articulate a strategy for the elimination of violence against women in the family. By arguing that custom, tradition and religion cannot be invoked by States Parties to defend violence against women in the family, international standards reject the cultural relativist argument that cultural practices that are violent towards women in the family should be shielded from international scrutiny.53 Recommendations: a. Conflict in rights should be resolved through the use of a holistic approach giving paramount consideration to the overall well-being and best interests of girls and young women. Article 2 of the CRC states that the best interests of the child shall be the primary consideration in all actions concerning children. b. States Parties to international and regional human rights treaties and agreements should refrain from invoking customs and traditions to avoid their obligation to eliminate harmful traditional practices resulting to violence, cruel, inhuman or degrading treatment of girls and young women. 2. Dealing with the politics of harmful traditional practices Gender discrimination is at the root of harmful traditional practices performed against girls and young women, and such practices are perpetuated in order to maintain the dominant position of men and boys over women and girls in a patriarchal society. Therefore, any effort to e liminate harmful traditional practices will be met with resistance from men but also from women themselves who have been socialised from birth to accept the inferior status ascribed to them by the dominant power holders in society and the necessity of subscribing to such practices. In the final analysis, efforts to eliminate harmful traditional practices are about challenging those who wield power in communities in particular and in society in general it is about challenging the status quo.
52 UDHR (article 27), CCPR (article 27), CESCR (article 15.1.a), CERD (article 5.e.vi), CEDAW (article 13.c), CRC (article 30), Convention on the Rights of Persons with Disabilities (article 30), Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (article 31) 53 Coomaraswamy, Radhika. Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women: Cultural practices in the family that are violent towards women (Report of the Special Rapporteur on violence against women, its causes, consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 2001/49), E/CN.4/2002/83, 31 January 2002

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Challenging the status quo has never been easy nor safe. There are risks attached to questioning power structures and relations. Most often, demanding redistribution of power and equality and democratisation of decision-making processes, whether in the private or public sphere, results in conflict. For those who are genuinely endeavouring to eliminate harmful cultural norms and practices, the challenge is not about how one should avoid such a conflict, because it is necessary for conflicting positions to be brought to the fore in order to address the root causes of harmful traditional practices and change the status quo. Rather the issue is how to resolve conflicts in a respectful, creative and peaceful manner without compromising on basic human rights principles of equality and non-discrimination. In societies where girls and young women have been brought up to be subservient, questioning dominant views and practices in their communities is difficult. One may risk being ostracised from the community, or being subjected to violence. It is imperative to empower girls and young women to deal with the issue of harmful traditional practices in particular and gender inequality in general. Empowerment of girls and young women requires the creation of an awareness of the various dimensions of the issue including the human rights dimension. In this respect, developing girls and young womens rights awareness is key to building their confidence in defending their human rights. Girls and young women should be the leading agents of change in their communities endeavouring to raise also the awareness and eventually the attitudes and behaviour of other stakeholders in the community including men and boys, their parents, traditional leaders, religious leaders and local policy makers. Their active participation in the various processes specifically in those concerning decisions affecting their lives is crucial in changing the power dynamics both at home and in the public space. Girls and young womens right to express their views and such views to be given due weight is guaranteed by the CRC.54 Furthermore, their rights to freedom of expression; freedom to seek, receive and impart information and ideas; freedom of thought, conscience and religion; and freedom of association and peaceful assembly are all provided for in the CRC.55 The exercise of these participation rights should be promoted and respected in consideration of their particular ages and evolving capacities. Recommendation: All sectors of society should provide support needed by girls and young women to empower themselves to demand for the respect of their human rights and the elimination of harmful traditional practices. 3. Changing social and cultural norms and practices which are harmful to girls and young women through awareness-raising and public education Harmful traditional practices are deeply rooted in the consciousness of people men and women, girls and boys, old and young, those who are subjected to the practice as well as those who perpetrate and perpetuate the practice. In order to change peoples behaviour, one must get to the root of the issue and work at changing
54 article 12 55 articles 13, 14, 15

We are conquerors. We were given information and insight into FGM but it was difficult to resist the rite. We were seen as sources of friction in the community, we had a big problem with our grandmother who talked about it for years. I could resist because I was educated. Esthers testimony from http:// awomansvoice.org/nl1-2004-4. html

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Malawian girls and boys included in planning and running of community projects.
Photo: Bente Kristensen, Plan Norway.

views, mind-sets and attitudes concerning discrimination against girls and young women. One cannot discount the crucial importance of raising the awareness of all members of society men and women, girls and boys about the harmful effects of certain traditional and customary practices not just on the individual development of girls and young women, but also their impact on the development of the community and society as a whole. Girls and young women form half of the human resources necessary for the development of a nation. The task of awareness-raising concerning this issue is challenging and time-consuming but essential if long-lasting changes are to be achieved and gender discrimination fully eradicated in the long run. Awareness-raising and public education endeavours should cover not only the harmful effects of some traditional and customary practices, but must also include discussions about the human rights of girls and young women. Recommendations: a. In line with the CRC Committees proposal, States should develop a comprehensive strategy for disseminating the knowledge of the CRC throughout society, including providing children with information of sources of help and advice. Furthermore, the Committee puts special emphasis on incorporating learning about the CRC and human rights in general into the school curriculum at all stages. All those working with and for children are required to know the CRC and the important role of media in disseminating information on the CRC.56

56 Committee on the Rights of the Child (2003). General Comment 5 par. 67-68. CRC/GC/2003/5

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b. It is imperative for State agencies to cooperate with non-state actors including NGOs and CBOs in raising awareness in the communities. State agencies may be viewed with suspicion by the communities, and local NGOs and CBOs which have deep knowledge about the communities and are trusted by the people may be the most effective catalysts for change. 4. Breaking the private/public dichotomy in dealing with violence against girls and young women The UN Study on Violence Against Children found that in the home and family setting, children experience assaults and other acts of physical violence, sexual violation, harmful traditional practices, humiliation and other types of psychological violence, and neglect.57 In many countries, there is still resistance to State intervention concerning protection of children from violence committed by family members. Violence occurring in the home is still considered a private family matter and perceived as falling outside the States obligation to protect children from violence. However, when one looks at the various levels of State legal obligations under international human rights law,58 it is clear that States have the duty to protect children from violations of their human rights by non-state actors or private persons, including family members. The CEDAW Committee in its General Recommendation no. 19 on violence against women stated that discrimination under CEDAW is not restricted to action
57 Pinheiro 50 58 Obligations to respect (State agents should refrain from violating an individuals rights); protect (the State should ensure protection of the rights of an individual from being infringed by another individual); fulfil (States should undertake measures to facilitate a persons enjoyment of his/her rights, and in some instances for example, in emergencies provide directly goods and services in order for a person to be able to enjoy his/her rights.

Zambian girls in a media club that raises awareness on childrens rights.

Photo: Bente Kristensen, Plan Norway.

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Play performed by Zambian youth, on the negative consequences of child marriage. Plan works with children and youth as change agents. In addition to songs, dances and drama, the child/ youth club pays home visits to parents who want to marry off their young daughters or keep them out of school.
Photo: Bente Kristensen, Plan Norway.

by or on behalf of Governments. Under article 2(e), the Convention calls on States Parties to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Under general international law and specific human rights covenants, 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, and for providing compensation.59 Recommendation: States should act immediately to fulfil their obligation to protect girls and young women from violence in general and harmful traditional practices in particular, committed by state agents and private entities or persons, through the adoption of laws and policies. It has to put in place institutions and agencies which are competent and have the capacity to respond to the needs of children who are suffering from the effects of harmful traditional practices as well as to prevent the further occurrence of harmful traditional practices. 5. Linking Harmful traditional practices and Torture, Cruel, Inhuman and Degrading Treatment In the human rights discourse, harmful traditional practices have seldom been considered as torture, cruel, inhuman and degrading treatment. Neither have other forms of violence against girls and women in the private sphere. In public international law, there are particularly two reasons for making this link:
59 CEDAW Committee (1992) General Comment 19 (11th session, 1992), Violence Against Women, par 9

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a. Hierarchy of sources in international law In the late 1960s a new concept, jus cogens, emerged as a result of the endeavours of the socialist and developing countries. These countries claimed that certain norms governing relations between States should be given a higher status and rank than ordinary rules deriving from treaties and custom. Treaties that deviate from these norms were to be regarded as null and void. These norms included self-determination of peoples, the prohibition of aggression, genocide, slavery, racial discrimination and in particular racial segregation and apartheid.60 Jus Cogens is expressed in the Vienna Conventions on the Law of Treaties of 1969 and 1986, article 53: For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The same applies to local custom.61 Many scholars claim that torture is also part of jus cogens.62 It is interesting to note that racial discrimination is included, but sex/gender discrimination is not. b. Priorities of rights Certain rights may not be derogated from even in times of war or other public emergency. Such rights are the right to life, recognition as a person before the law, the freedom of thought, conscience and religion and the prohibition of torture, slavery, retroactivity of criminal legislation and imprisonment on grounds solely of inability to fulfil a contractual obligation. The fact that a right is non-derogable, may constitute evidence that the right concerned is part of jus cogens.63 Such non-derogable rights clearly are regarded as possessing a special place in the hierarchy of rights.64 This notion of a hierarchy of rights is contrary to the human rights based approach to development (HRBA). One of the principles of the HRBA is indivisibility and interdependence of rights and that all rights are equally important, without any hierarchy. Although human rights are part of public international law, there seems to be two schools of thought and interpretation of international law and human rights. The first one, dominated by public international law experts, does not include the specific issues concerning girls and young women. Their interpretation of international law is narrow and without a clear gender perspective. The second one, dominated by experts on childrens rights and womens rights, includes gender and development issues, but does not have the same status in the international system. Harmful traditional practices and other forms of gender-based violence continue to be womens issues, which are not considered to be an issue within jus cogens. But there are new emerging trends. The new definition of torture applies to both public and private individuals and does not consider torture as being limited only to an act committed at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity. Under this new interpretation NGOs like OMCT (World Organisation against Torture) affirms that:
60 61 62 63 64 Cassese, Antonio (2001). International Law, Oxford, 139 Malanczuk, Peter (1997). Akehursts Modern Introduction to International Law. 7th rev. ed, 57 Cassese. 141, Malanczuk. 58 Shaw, Malcolm (1997). International Law. 4th ed. UK. 204 Shaw. 204

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At age 13, this Zambian girl escaped from forced marriage. As a result, she was beaten and burnt by her aunt and had to spend two months in hospital to recover. After her return from the hospital, her aunt set her hut on fire while she was sleeping. This time, she escaped to her mothers village, where she has stayed for the past 2 years.
Photo: Bente Kristensen, Plan Norway.

Acts of torture in both war and peace time against girls and women is prohibited by international law. Depending on each States outlook, the following acts are considered torture: rape and sexual abuse, genital mutilation, incest, forced abortion, honour killings, dowry-related violence, forced marriages, human trafficking and forced prostitution. The OMCT notes that in most domestic legislations, there is no specific definition of torture where the victim is a child, nor is there a trend to accept a broad interpretation of torture by the law-courts where the victim is a child. However, although the definitions of torture and of inhuman and degrading treatments have been broadened, there are still concerns and doubts with regard to the way the law-courts might interpret and adequately apply them in practice to cases of child victims.65
Recommendations: a. Increase scientific research on the link between harmful traditional practices and torture b. Create a strategy that mainstreams the issues affecting girls and young women into the whole UN system and mechanisms.
65 www.omct.org

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c. Create model laws that states can use as a basis for improving domestic legislation to include protection from gender-based torture, cruel, inhuman and degrading treatment or punishment. 6. Closing the gap between international norms/ standards and domestic laws and policies The existing standards in international law relevant to violence against children are comprehensive and detailed,66 and as shown above, international human rights law and several regional instruments provide adequate protection against harmful traditional practices. However, as pointed out by various human rights treaty bodies in their concluding observations when examining State Party reports, such international norms and standards have not been reflected in the national laws and policies of many States Parties. The UN Study on Violence Against Children also stated that many countries lack legal protection against harmful traditional practices 67. There is still a lot of advocacy work that is needed in pressuring States Parties to translate their international legal obligations into domestic laws and policies. Recommendation: States Parties to international human rights treaties and regional agreements should be pressured to adopt laws and policies prohibiting harmful traditional practices in particular and violence against children in general as well as promoting gender equality. 7. Ending Impunity Through the Enforcement of Laws Against Harmful Traditional Practices in Particular and Violence Against Children in General One of the important lessons that can be drawn from the approach taken by the womens rights movement in its efforts to end domestic violence is the recognition that there is a need to complement programmes aimed at raising awareness and changing behaviour with legal and institutional reforms. States are legally bound to translate their obligations under international treaties that they have ratified into domestic law and policies. This requires not only the adoption of laws penalizing harmful traditional practices against girls and young women but also mustering the political will to enforce such laws and generally to uphold the rule of law. Where necessary, law enforcement institutions and mechanisms have to be reformed. In addition, the competence of law enforcement agencies have to be strengthened in order for them to respond adequately, effectively and in a sensitive manner to cases concerning harmful traditional practices against girls and young women. There is understandably some sceptism as to the use of law as a strategy in ending harmful practices deeply-rooted in value systems and beliefs informed by customs and traditions. There are many who hold the view that the only effective way of eliminating harmful traditional practices is by changing the consciousness of the people. However, as Radhika Coomaraswamy, the former UN Special Rapporteur on Violence Against Women, pointed out in her 2002 report, there are examples in
66 Pinheiro 41 67 Pinheiro 70

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We dont know any law that prohibits (female genital) excision, but if such a law is passed, we will respect it and follow it. (Elderly woman in a village in Guinea where excision has been outlawed since 1965) Plan West Africa, Tradition and Rights: Female Genital Cutting in West Africa, 2006, p. 28

Legal Protection Against FGC When the Law Works Community based actions are strengthened because the law Gives back up and justification to local partners who can intervene as spokes people of the government Protects non-excised girls and helps families to resist the social pressure to have them excised Demonstrates formally that the abolition of excision is a governmental objective and not an initiative of outsiders Hinders conservatives such as religious leaders from broadcasting pro-excision opinions through the media Plan, Because I am a Girl, 2007, p. 42 (from Plan West Africa, Tradition and Rights: Female Genital Cutting in West Africa, 2006)

history of how strong and effective laws have eliminated certain practices within a matter of years. She argued that the existence of a criminal sanction ensures that parents have an excuse to spare the child such a practice. The law allows parents a way to avoid giving in to social pressure and custom. Without such a law, it is difficult to eradicate a practice in a generation.68 In this case, it is crucial that people are made aware of laws prohibiting harmful traditional practices against girls and young women, as well as the penalties attached to violations of such laws. Care should be taken so that the enforcement of such penalties and punishment does not result in further harm to the girls and young women, and to other children in the family and should always consider the best interests of the girls and young women, and the other children in the family, given childrens dependent status. If possible, the law and the corresponding punishment/penalties attached to its violation should be used more as a deterrent to performing harmful traditional practices. Owing to the fact that girls and young women experience specific types of harmful traditional practices because of their gender, there is a compelling need for laws (including their enforcement), policies and national plans of actions aimed at addressing the issue of harmful traditional practices against children to have a gender perspective which promotes and respects the principle of gender equality in practice. The UN Study included as one of its recommendations the need to address the gender dimension of violence against children.69 There are concerns that one of the unwanted effects of legislation is that traditional harmful practices will be conducted clandestinely. Others however have pointed out examples of success in adopting and enforcing the law. For example, in Burkina Faso the law prohibiting female genital cutting has been applied rigorously. Between 1996 and 2005, there were more than 400 convictions. Those convicted face a fine of up to $ 1,800 and a possible prison sentence of up to three years. In addition, public information campaigns were carried out and the topic was included in the school curriculum. Moreover, a telephone line was set up and there were initiatives to find alternative employment for women who carried out the practice. Such multidimensional response resulted in decrease in the number of girls subjected to FGC.70 Combining the adoption of laws prohibiting harmful traditional practices with awareness-raising and public education can prove to be a potent strategy in ending harmful traditional practices experienced particularly by girls and young women. In the final analysis, the political will of the leaders of a country in undertaking legal and institutional reforms aimed at the effective enforcement of laws is highly critical to ending harmful traditional practices which violate the rights of children in general and of girls and young women in particular. Recommendation: States should ensure the enforcement of laws prohibiting harmful traditional practices in particular and violence against children in general. Institutions tasked with enforcing the laws should be reformed if necessary, including strengthening the capacity and increasing the competence of law enforcement agencies and the justice system.
68 Coomaraswamy 31 69 Pinheiro 22 70 Plan International (2007). Because I am a Girl Because I am a Girl,. 42

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8. Ensuring accountability and creating leadership Ending harmful traditional practices against girls and young women is the responsibility of all sectors of society, public and private. But who should take the lead and who are accountable? Using the framework provided by the CRC, it is the primary duty of families to protect children from violence and to refrain from engaging in violent acts. The State, on the other hand, has the primary legal obligation to create the framework and conditions in society which protects all children from violence. Within a human rights framework, the State (its institutions and agencies) is ultimately accountable for passing legislation and adopting policies (including plans of action) to end harmful traditional policies, and for enforcing such legislation and implementing policies. The State has an obligation to the people living in its territory as well as to the international community to report on its progress in eliminating harmful traditional practices. Recommendation: States should exercise leadership to end all forms of violence against children in general and eliminate harmful traditional practices in particular. States should support advocacy in this regard at all levels, including at the local, national, regional and international levels, and by all sectors, especially by political, community and religious leaders, as well as by the public and private sectors, the media and civil society.71 9. Adopting and implementing a common strategy and approach As there are many actors, both nationally and internationally, engaged in addressing the issue of harmful traditional practices, there are also varying strategies being employed to contribute either to the elimination of harmful traditional practices or to making the traditional practices less harmful. The question is whether the strategies are anchored on a human rights-based approach and framework. Although, there are provisions in the core international human rights treaties sufficient enough to address the issue of violence against children in general and harmful traditional practices against girls and young women in particular, the various UN human rights treaty bodies and other human rights mechanisms have given scant attention to issues concerning harmful traditional practices, except for some high-profile issues such as FGM, forced marriages, honour killings and infanticide. There is a need to mainstream the issue of harmful traditional practices in the work of the UN treaty bodies, mechanisms and other institutions. The UN Study on Violence Against Children provides a clear framework with its 12 recommendations on how to prevent and respond to violence against children in general, including prohibition of harmful traditional practices. These recommendations in addition to the relevant international and regional human rights treaties and instruments should be the guiding framework for international, national and local strategies for eliminating harmful traditional practices. National and local strategies should be contextualised but should contain common key elements based on a human rights approach.
71 Adapted from the CSW Special Session 2007 outcome, par.13 e

Obligations of the State State obligation for human rights violations is incurred if the State or its agents violate the terms of a treaty which the State has accepted. State obligation is also incurred if the State fails to ensure childrens rights to protection against violence by permitting such violence, or failing to take appropriate measures, or to exercise due diligence to prevent, punish, investigate or redress the harm caused by the acts of individuals, groups and entities. Therefore, where violence in the community is concerned, States are required to put in place appropriate laws, policies and programmes to prevent such violence, investigate it if it takes place, ensure that perpetrators are sanctioned and redress the harm which may result. UN Study on Violence Against Children, 2006, p. 286

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Recommendations: a. All actors, both in the public and private sectors, addressing the issue of harmful traditional practice should adopt strategies based on a human rights-based approach and framework informed by the relevant international treaties and regional agreements. b. The various international and regional inter-governmental human rights bodies and agencies should further mainstream the issue of harmful traditional practices. c. States should implement the recommendations of the UN Study on Violence Against Children. 10. Utilising methodologies and tactics which conform to a holistic human rights approach
Principles and Recommendations from the UN Study of Violence Against Children (2006) 1. Strengthen national and local commitment 2. Prohibit all violence against children 3. Prioritise prevention 4. Promote non-violent values and awareness-raising 5. Enhance the capacity of all who work with and for children 6. Provide recovery and social reintegration services 7. Ensure the participation of children 8. Create accessible and childfriendly reporting systems and services 9. Ensure accountability and end impunity 10. Address the gender dimension of violence against children 11. Develop and implement systematic national data collection and research efforts 12. Strengthen international commitment

The lack of a holistic human rights framework in some of the methodologies and tactics employed in dealing with harmful traditional practices, such as FGM, has led to perhaps unintended consequences and failure in achieving the intended result of eliminating the harmful traditional practice in question. For instance, the heavy emphasis on the health aspect of FGM has led to the medicalisation of FGM. It has not resolved issues related to, for example, the right of girls and women to be protected from gender discrimination and their right to human dignity as well as freedom from torture, cruel, inhuman or degrading treatment. For a sensitive and complex issue such as harmful traditional practices, it is crucial to employ creative and appropriate methods and tactics that provide entry points for engagement with the community. However, one should not lose sight of the main aim of the strategy which is the total elimination of harmful traditional practices and not sell short by simply making the practices less harmful. It is also imperative to ask whether the methodologies and tactics used are genuinely addressing the issue of gender discrimination sufficiently as this is at the root of the issue and should also be eliminated in the long run. More recently, alternative traditional practices or rites72 are being promoted. This is a positive development and should be supported. Messages pertaining to human dignity, gender equality and human rights should be emphasised during such alternative rites and ceremonies. Recommendation: All actors dealing with the issue of harmful traditional practices must employ methodologies and tactics consistent with strategies based on a human rights approach and framework. 11. Giving more attention to data collection, research and monitoring The UN Study on Violence Against Children pointed out gaps in research and data collection in determining the magnitude, characteristics, and trends of many forms
72 For example, in Kenya, a new rite known as Circumcision through words has replaced FGM itself. (from Coomaraswamy 32)

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of violence against children both in poor and rich countries.73 Futhermore, the Study found that only a small proportion of acts of violence against children is reported and investigated, and few perpetrators held to account. In many parts of the world there is no system responsible for recording, or thoroughly investigating reports of violence against children.74 It is worth noting that the UN Study itself did not make a thorough coverage and analysis of harmful traditional practices except for a brief discussion focusing on FGM/FGC. There is a need for more in-depth investigation as to harmful traditional practices other than those (such as FGM, honour killings, infanticide, forced marriage) which are usually covered in research studies. There are customary and traditional practices which do not necessarily cause severe physical pain but nevertheless violates a girls or a young womans right to physical integrity and human dignity. There is a need for research to investigate how humiliating and degrading traditional practices affect the self-esteem of girls and young women, and the possible long-term effects on their mental and psycho-social well-being. An important development of recent years, and one promoted by the UN Study on Violence Against Children, has been the involvement of children themselves in research.75 Data collection and documentation are important in establishing facts about harmful traditional practices and in helping the various actors understand the magnitude of the issue. A mapping out of the various practices in specific geographical areas is a first step, followed by a documentation of the number of people affected, disaggregated into sex/gender and age groups. Identification and analysis of the various actors and power-holders in the communities are also important in informing appropriate strategies and lines of action. Advocating and negotiating for good laws and policies require well-documented facts and figures as well as well-grounded analysis of the situation. Monitoring progress in eliminating all harmful traditional practices against girls and young women should be made more visible in State reports to the CRC Committee as well as to other relevant human rights treaty bodies. States should be able to show concrete measures legislative, administrative, and other measures taken in order to combat harmful traditional practices. States should also be able to show trends and patterns (decrease/increase and/or change in the form of practice). Likewise, NGOs and civil society organisations should focus more on this particular issue in their alternative reports. Recommendations: a. All sectors should undertake more data collection and research on harmful traditional practices. A national mapping-out of all harmful traditional practices, similar to the one undertaken by the Malawi Human Rights Commission, is an important first step in understanding the various practices more in-depth. Research articulating harmful traditional practices not only as violence but also as forms of torture, cruel, inhuman or degrading treatment is urgently needed. b. More focus should be accorded to monitoring progress in eliminating harmful
73 Pinheiro 23 74 Pinheiro 10 75 Pinheiro 87

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Photo: Alf Berg, Plan Norway

traditional practices in both State reports and NGO reports to the relevant UN human rights treaty or monitoring bodies, and greater attention to the issue should be given in the concluding observations/recommendations of the various treaty and monitoring bodies. 12. Prioritising the Elimination of Violence Against Children in General and Harmful Traditional Practices Affecting Girls and Young Women in Particular in Development Policies Lack of resources is often used as an excuse by poor States for inaction and for not complying with its obligations as set forth in the CRC and other human rights treaties. Lack of resources is not a valid excuse. Implementation of childrens rights is an obligation of the global community. There is an international dimension to State Party obligations. The Preamble of the CRC recognizes the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries. Although article 4 indicates international co-operation only with regard to economic, social and cultural rights, the principle of indivisibility and interdependence of childrens rights renders

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legitimacy to extending international co-operation to apply also to other categories of childrens rights including childrens right to protection from violence, abuse and exploitation. There is compelling evidence that violence experienced by girls and young women (including those resulting from harmful traditional practices) has an effect and impact on their enjoyment of their other rights including economic and social rights such as the right to education and health. In a broader sense the violence experienced by girls and young women will in the long run have a negative impact on a countrys development. In The CRC Committees General Comment no. 576, the Committee advises States Parties that the Convention should form the framework for international development assistance related directly or indirectly to children and that programmes of donor States should be rights-based. Furthermore, the Committee encourages States Parties that receive international aid and assistance to allocate a substantive part of that aid specifically to children. Recommendation: States should make specific resource allocation to combat and eliminate harmful traditional practice against girls and young women and make such resource allocations visible in international development budgets and in the national budgets of recipient countries.

No more excuses for inaction

The main message of the UN Secretary Generals Study on Violence Against Children (2006) is that no violence against children is justifiable, and all violence against children is preventable.77 This is a re-affirmation of what is already contained in various human rights instruments. No excuse (including customs, traditions, cultural and religious practices) can trump childrens enjoyment of their rights. State Parties to human rights treaties which give protection to children are obliged to act immediately in order to stop impunity for perpetrators of violence against children. There is no excuse for inaction nor for any delay in taking action. Other non-state duty bearers (NGOs, CBOs, private companies, private citizens including families) also have responsibilities to respond urgently and effectively to what has been referred to in the UN Study on Violence Against Children as an emergency.78 This publication is a preliminary review of issues concerning and related to harmful traditional practices. More research is needed as well as discussion, formal and informal, in order to sharpen current strategies and approaches in eliminating harmful traditional practices. In this connection, Plan Norway and Plan Finland recommend holding a conference to examine, discuss, debate, and possibly create a consensus on issues concerning and related to harmful traditional practices which still need further articulation and action.
Ending violence against children needs to be part of national development plans and development assistance frameworks, not an afterthought. Ragne Birte Lund, Ambassador, Ministry of Foreign Affairs of Norway (UN Study on Violence Against Children, 2006)

76 Committee on the Rights of the Child (2003). General Comment 5, CRC/GC/2003/5 77 Pinheiro 3 78 Pinheiro 5

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References
Books/Articles/Reports 1) Banda, Fareda (2005). Women, Law and Human Rights. An African Perspective. Oxford-Portland Oregon: Hart Publishing 2) Cassese, Antonio (2002). International Law. Oxford: Oxford University Press 3) Coomaraswamy, Radhika (2002). Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women: Cultural practices in the family that are violent towards women, Report of the Special Rapporteur on violence against women, its causes, consequences, submitted in accordance with Commission on Human Rights resolution 2001/49), 31 January 2002, E/CN.4/2002/83 4) Ertrk, Yakin (2007). Intersection between culture and violence against women, Report of the UN Special Rapporteur on violence against women, its causes and consequences. 17 January 2007, A/HRC/4/34 5) National Committee on Traditional Practices of Ethiopia (2005). Old Beyond Imaginings: Ethiopia Harmful Traditional Practices. Addis Ababa, Plan Ethiopia. 6) NORAD (2007). The Norwegian International Effort Against Female Genital Mutilation 7) Malawi Human Rights Commission (MHRC) (2005). Cultural Practices and their Impact on the Enjoyment of Human Rights, particularly the Rights of Women and Children in Malawi. Lilongwe, MHRC 8) Malanczuk, Peter (1997). Akerhursts Modern Introduction to International Law. London and New York: Routledge 9) Nowak, Manfred (1993). U.N Covenant on Civil and Political Rights- CCPR Commentary. Kehl am Rhein; Strasbourg; Arlington: Engel 10) OMCT (2001). Children, torture and other forms of violence, Facing the facts forging the future. 11) Pinheiro, Sergio (2006). World Report on Violence Against Children (UN Secretary Generals Study on Violence against Children). Geneva, United Nations. 12) Plan Ethiopia (2006). Country Program Progress Report 13) Plan International (2007). Because I am a Girl. The State of the Worlds Girls 14) Shaw, Michael (1999). International Law. Cambridge: Cambridge University Press 15) Tandon, Sneh Lata and Sharma, Renu (2006). Female Foeticide and Infanticide in India: An Analysis of Crimes Against Girl Children. International Journal of Criminal Justice Sciences 1, January 2006 16) UNFPA (2005). State of the World Population 17) UNFPA (2003). MissingMapping the Adverse Child sex-ratio in India 18) UNICEF (2002). Implementation Handbook for the Convention on the Rights of the Child 19) UNICEF (2004). Ethiopia Country Report 20) UNICEF (2007). State of the Worlds Children 21) United Nations (2006). Ending Violence against Women From words to action 22) Zuberi, Farhana (2005). Assessment of Violence against Children in Eastern and Southern Africa Region: Result of an initial desk review for the UN Secretary Generals study on violence against children Internet Sources UNICEF Sudan: Religious leader speak out against female genital mutilation/cutting. http://www.unicef.org/ infobycountry/sudan_29886.html Human Rights Council Panel discussion on female foeticide and girl infanticide. http://www.crin.org/resources/ infoDetail.asp?ID=12840&flag=news Commission on the Status of Women, Report from the 51st session. http://daccessdds.un.org/doc/UNDOC/GEN/ N07/282/48/PDF/N0728248.pdf?OpenElement Plan International, The Gender Gap in India. http://www.plan-international.org/wherewework/asia/india/ ourwork/gender/ Treaty Body references 1) CRC General Day of Discussion 1995. http://www.unhchr.ch/html/menu2/6/crc/doc/days/girl.pdf 2) CEDAW General Recommendation 19. http://www.un.org/womenwatch/daw/cedaw/recommendations/ recomm.htm#recom19 3) CRC General Comment 3. http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.3.En?OpenDocument 4) CRC General Comment 4. http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.4.En?OpenDocument 5) CRC General Comment 5. http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument 6) CRC General Comment 7. http://www.ohchr.org/english/bodies/crc/docs/AdvanceVersions/ GeneralComment7Rev1.pdf 7) CRC General Comment 8. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.GC.8.En?OpenDocument 8) CAT 36th session Togo. http://daccessdds.un.org/doc/UNDOC/GEN/G06/434/74/PDF/G0643474. pdf?OpenElement 9) CAT 31st session Cameroon. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.31.6.En?OpenDocument 10) CCPR General Comment on article 7 (1992). http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969 c12563ed004c8ae5?Opendocument 12) CRC Committee India 2004. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.228.En?OpenDocument

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13) CEDAW Committee India 2007. http://daccessdds.un.org/doc/UNDOC/GEN/N07/243/98/PDF/N0724398.pdf?OpenElement 14) CRC Committee Malawi 2002. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.174.En?OpenDocument 15) CEDAW Committee Malawi 2006. http://daccessdds.un.org/doc/UNDOC/GEN/N06/384/49/PDF/N0638449.pdf?OpenElement 16) CRC Committee Sudan 2002. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.190.En?OpenDocument

Conventions and Declarations 1) Convention on the Rights of the Child http://www.ohchr.org/english/law/crc.htm 2) Convention on the Elimination of Discrimination against Women http://www.ohchr.org/english/law/cedaw.htm 3) Covenant on Civil and Political Rights http://www.ohchr.org/english/law/ccpr.htm 4) Covenant on Economic, Social and Cultural Rights http://www.ohchr.org/english/law/cescr.htm 5) Convention on the Elimination of Racial Discrimination http://www.ohchr.org/english/law/cerd.htm 6) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment http://www.ohchr.org/english/law/cat.htm 7) African Charter on the Rights and Welfare of the Child http://www.africaunion.org/official_documents/Treaties_%20Conventions_%20Protocols/A.%20C.%20ON%20 THE%20RIGHT%20AND%20WELF% 20OF%20CHILD.pdf 8) The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa http://www.achpr.org/english/_info/women_en.html 9) SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia http://www.saarc-sec.org/old/freepubs/conv-children.pdf 10) ASEAN Declaration on the Elimination of Violence Against Women in the ASEAN region. http://www.aseansec.org/16189.htm 11) The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women Convention of Belem Do Para http://www.oas.org/cim/English/Convention%20Violence%20Against%20Women.htm

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This publication was comissioned by Plan Norway and Plan Finland 2007

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