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Netherlands > "Punish Perpetrators, Compensate Victims": UN Committee Against Torture Condemns Intersex Genital Mutilation

IGM = Torture, NOT 'Discrimination' or 'Gender Identity'Zwischengeschlecht.org on FacebookDuring its 65th Session in Geneva, the UN Committee against Torture (CAT) investigated IGM practices in the Netherlands.

Now the Committee sternly reprimanded the Netherlands, unmistakably condemning "unnecessary and irreversible surgery and other medical treatment [...] performed on intersex children without informed consent and impartial counselling" as well as the"[lack of] any inquiry, sanction or reparation and that there is no specific legal provisions providing redress and rehabilitation to the victims".

UN-CAT further explicitly obliged the Netherlands government to "[t]ake the legislative, administrative and other measures necessary to guarantee the respect for the physical integrity and autonomy of intersex persons", to "[g]uarantee impartial counselling services and psychological and social support for all intersex children and their parents", to "[u]ndertake investigation" of cases IGM practices, "punish perpetrators" and "ensure that the victims are provided with redress including adequate compensation" (see full binding recommendations below after the break).

This marks the first reprimand for IGM issued by CAT in over 2 years (since the last to France in spring 2016) and the 7th by CAT in total, as well as the 2nd UN reprimand for the Netherlands (after CEDAW in winter 2016) recognising IGM as a serious violation of non-derogable human rights, and the 38th such UN reprimand in total (see complete list).

Congratulations to Nederlandse organisatie voor seksediversiteit (NNID) and everybody involved!

Read below excerpts from and references to all relevant documents during the CAT review of the Netherlands, starting with a good question on IGM by the Committee in its "List of Issues prior to Reporting (LoIPR)":

Timeline CAT Netherlands 2015-2018

• During its 56th Session in November December 2015, CAT drafted the List of Issues Prior to Reporting (LoPIR) for the Netherlands with questions to the State party to be answered in its State report.

• Although none of the NGO or NHRI reports submitted for LoIPR mentioned Intersex Genital Mutilation, the LoIPR published in January 2016 contained a question on IGM practices in the Netherlands under CAT art. 14, "Cruel, Inhuman or Degrading Treatment" punishable under the Convention (CAT/C/NLD/QPR/7, para 31):

«31. Please provide information on the amendments to the Medical Research Act in relation to non-therapeutic medical research involving minors and adults who are incapable of giving informed consent. With regard to persons with variations of sex development (intersex persons), please clarify whether unnecessary medical or surgical treatment aimed at determining the sex of a child is permitted and performed on children and adults who are incapable of giving informed consent. If so, please indicate which criminal or civil remedies are available for victims in these cases and whether they are subject to any statute of limitations.»

• In the Netherlands State report under LoIPR published in September 2017, the government gave some rather vague answers (CAT/C/NLD/7, paras 188-190)

«Question 31

The Netherlands

188. The Medical Research (Human Subjects) Act has been amended with respect to the norms for research involving minors and decisionally incompetent adults. The Act entered into force in 1999 and contained a highly restrictive provision governing research involving these subjects. In practice it proved too restrictive, creating unnecessary obstacles to the development of new therapies for these groups. For this reason, the statutory options for such research have been slightly expanded to conform with the international norms for clinical drug trials to be established under the Clinical Trials Regulation (CTR) EU No. 536/2014. More specifically, this means that non-therapeutic research using these groups is permitted if the trial involves minimum risk and minimum burden compared with the standard treatment for the condition the subject is suffering from.

189. Section 2 of the Care Sector (Quality, Complaints and Disputes) Act (WKKGZ) obliges care providers to provide good quality care. At a minimum, this means that care providers must act in accordance with professional standards, which includes obtaining informed consent. This Act is general in scope and therefore covers the care and treatment of intersex persons. Unnecessary medical and surgical treatments do not in principle constitute good quality care. The IGZ can enforce the law where care providers are carrying out procedures that are not in accordance with professional standards.

190. Under the WKKGZ a patient or parent can lodge a complaint with the help of a complaints official (free of charge). Complaints must be dealt with within six weeks (with a possible extension to ten weeks) preferably by means of an open discussion between patient/parent and the care provider. If this is unproductive, the patient/parent can submit the dispute to an independent dispute settlement body, which can give binding decisions and grant compensation up to a maximum of €25,000. The patient/parent can also submit the dispute to a civil court.»

• A Joint NGO report (INT/CAT/CSS/NLD/32784, paras 5-17, 30-33) by Nederlandse organisatie voor seksediversiteit (NNID) et. al submitted in September 2018 provided evidence of the ongoing practice and the failure of the government to act despite complaints by intersex organisations (p. 3-7), as well as of the lack of access to redress and justice for IGM survivors (p. 10-11).

• During its 65th Session in Geneva, CAT reviewed the Netherlands on 20-21 November 2018, and raised IGM practices. While the Summary records of Session 1 do not mention a question about IGM, the records of Session 2 contain a non-answer on intersex (para 25) and a follow-up question on lack of redress by CAT expert and Country Rapporteur Mr. Abdelwahab Hani (para 78), however, again no follow-up answer is mentioned:

«25. [Mr. de Weever (Netherlands), speaking on behalf of the Government of Sint Maarten] Sint Maarten did not currently have a medical research policy in relation to intersex persons.»

«78. [Mr. Hani (Country Rapporteur)] The Committee had received reports that the ill-treatment of intersex persons routinely went unpunished in the State party and that no compensation was provided to victims. [...]»

• On 7 December 2018, CAT published the advance version of its Concluding Observations  with binding recommendations for the Netherlands, including a strong reprimand for IGM practices (paras 52-53), as well as generally reminding the State party of its obligations regarding redress under CAT art. 14 and CAT general comment No. 3 (2012) on the implementation of article 14 (para 54):

Full CAT 65 Concluding Observations on Intersex
CAT/C/NLD/CO/7, paras 52-53

«Intersex persons

52. The State party is concerned at reports that unnecessary and irreversible surgery and other medical treatment are performed on intersex children without informed consent and impartial counselling. It is concerned that these procedures, which cause long-term physical and psychological suffering, have not been the object of any inquiry, sanction or reparation and that there is no specific legal provisions providing redress and rehabilitation to the victims.

53. The State party should:

(a) Take the legislative, administrative and other measures necessary to guarantee the respect for the physical integrity and autonomy of intersex persons and to ensure that no one is subjected during infancy or childhood to non-urgent medical or surgical procedures intended to decide the sex of the child without his or her informed consent;

(b) Guarantee impartial counselling services and psychological and social support for all intersex children and their parents, so as to inform them of the consequences of unnecessary and non-urgent surgery and other medical treatment to decide on the sex of the child and the possibility of postponing any decision on such treatment or surgery until the persons concerned can decide by themselves;

(c) Guarantee that full, free and informed consent is ensured in connection with medical and surgical treatments for intersex persons and that non-urgent, irreversible medical interventions are postponed until a child is sufficiently mature to participate in decision-making and give effective consent;

(d) Undertake investigation of instances of surgical interventions or other medical procedures performed on intersex persons without effective consent and prosecute and, if found responsible, punish perpetrators. It should also ensure that the victims are provided with redress including adequate compensation.»

See also:
“Harmful Medical Practice”: UN, COE, ACHPR, IACHR condem IGM
38 UN Reprimands for IGM – and counting ...
UN Committee for the Rights of the Child (CRC): IGM = Harmful Practice + Violence
UN Committee against Torture (CAT) 2015: IGM = Inhuman Treatment or Torture
UN Women's Rights Committee (CEDAW): IGM = Harmful Practice
UN Committee on the Rights of Persons with Disabilities (CRPD): Violation of Integrity
UN Human Rights Committee (HRCttee-CCPR) condemns IGM Practices

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