The debate on the practice of female genital mutilation developed from the 1920s onwards and reached a particular pitch in the 2000s, giving rise in the international arena to a series of resolutions and documents highlighting the impact of the practice on human rights, and inspiring many of the state interventions in this field.
To date, among the main points of reference on the subject of FGM in the panorama of international law, the United Nations and Council of Europe legislation certainly stand out, especially in relation to the instruments for combating this type of impairment and the relationship between FGM and the right to asylum.[1]

FGM and Italian criminal law

In the criminal sphere, Italy has criminalised FGM with an ad hoc regulation, Article 583 bis of the Criminal Code (Law 7/2006). This has been considered by some scholars as a form of closure to cultural diversity: as is the case for male circumcision,[2] the act could have continued to be prosecuted through the simple discipline of injuries (Articles 582 and 583 of the Criminal Code), creating less inequality of treatment with respect to the 'male' equivalent of the practice, especially in relation to those forms of intervention lacking a real capacity to permanently injure physical integrity (Mancini, 2017; Basile 2013).
To date, the application of this doctrine has been minimal. From the existing case law on the subject, however, some interpretative logic can be deduced that, in terms of balancing the rights involved, reveals a judicial tendency to distinguish between more and less serious FGM. The first case[3] dealt with by the Italian Courts immediately after the law came into force concerned a Nigerian mother of the Edo-bini ethnic group who had turned to a 'traditional' midwife to have a small incision operation (the arué) performed on her newborn daughter, which was then considered by the medical experts to be scarcely harmful to the minor's physical integrity, since although it could cause an illness, it did not tend to permanently weaken the sexual organ.
Of particular importance in the proceedings were the degree to which the practice was detrimental to physical integrity and health, ascertained by means of a medical report, and the anthropological analysis of the motivations behind the mother's behaviour. This behavioural analysis was deepened through the hearing, proposed by the defence, of some qualified witnesses such as: a university lecturer in educational anthropology; a university lecturer in mediation pedagogy; and a priest of the Pentecostal Church, belonging to the Edo-bini ethnic group (Basile, 2013).
In the first instance, the comparison between the cultural practice and the injured legal asset (physical integrity of the minor, health of the minor) had a significant influence on the commensuration of the sentence, while on appeal it led to the acquittal of the mother for lack of the specific intent required by the law (second paragraph of Article 583 bis of the Criminal Code): the judges considered that there was no intention to impair the sexual functions of the minor, given the reasons in deference to which the mother had subjected her daughter to the intervention (function of humanisation, identity function, purification function).
The second case[4] concerns an Egyptian mother living in Italy who in 2007 had her two underage daughters subjected to an excision operation during a holiday in her homeland. Although treated differently, the cultural factor still had a substantial influence on the reduction of the sentence. The cultural reasons that had prompted the woman to act were held to be 'recessive', with respect to legal values protected by the Italian Constitution and inherent in the fundamental rights of the individual, nor was excusable ignorantia legis held to exist, with respect to the prohibition under Italian law. The balance identified by the judge between the rights at stake could have been even more effective through its explication in the ruling also at the "communicative" level, highlighting more the degree of harmfulness of the practice, which certainly played a fundamental role in the judge's evaluations. The balancing act carried out would have been more anchored to the principle of offensiveness, since in this case it was a practice seriously damaging to the physical integrity and health of minors, and with equal solutions it would have been more in keeping with the pluralism that a multi-ethnic society requires, more in keeping with a view to resolving the conflict rather than exacerbating it on the basis of the universal assumption that it is up to each migrant to conform to the majority culture.

FGM and international protection

Law No. 7/2006 does not provide for the granting of refugee status or other forms of international protection to FGM victims, despite this having been initially provided for in the draft Article 5. However, in the area of international protection, it is worth highlighting certain 'best practices' that the Court of Legitimacy is implementing, both in terms of the legal nature of FGM with respect to the discipline of international protection, and in terms of the ways in which the obligation to cooperate in the investigation is carried out, all of which are useful to guide the work of territorial commissions and courts of merit.[5]
 

According to some guidelines, the risk of undergoing FGM (or a repetition of it) is likely to trigger important forms of protection such as subsidiary protection, pursuant to Article 14 lett. b) (d. lgs. 251/2007) or even refugee status: FGM constitutes a form of serious damage to a woman's physical and psychological integrity and to her health; it can amount to inhuman and degrading treatment; it constitutes a form of persecution for belonging to a specific social group (the female gender); it can also trigger the higher protection of refugee status "if the phenomenon is practised, in the social and cultural context of the country of origin, in order to achieve unjustly discriminatory treatment, whether direct or indirect" (Cass. Civ. sez. lav. - 16/02/2022, no. 5144; Civil cassation sec. I - 25/10/2021, no. 29971).
Women subject to this type of treatment are to be considered victims of violence (ex art. 17 Legislative Decree 142/2015), included in the category of persons with special needs (Cass. Civ. sez. VI - 12/01/2023, no. 762).
With regard to the performance of investigative cooperation, courts need to completely assess the social contexts of origin, using data such as any state regulatory framework which prohibits FGM, and the optional or mandatory nature of the practice in the ethnic-religious group to which one belongs. It is advisable to carry out an in-depth investigation that takes into account the actual spread of the social custom, the possible existence of a "collective conditioning" on the basis of which it is in any case perceived as dutiful (Court of Cassation Civ. sez. I - 25/10/2021, no. 29971), as well as the degree of social marginalisation for individuals who decide to deviate from it, which may exacerbate the state of subjective vulnerability (Court of Cassation Civ. sez. VI - 15/07/2021, no. 2029). On this question, the Court appears to be open to the possibility of recognising protection even for male petitioners who may be opposed to the practice on the basis that it violates the rights of their relatives (Cass. Civ. sez. I - 15/12/2022, n. 36845, Cass. Civ. sez. I - 14/07/2022, n. 22234, Cass. Civ. sez. lav. - 16/02/2022, no. 5144, Cass. Civ. sez. VI - 15/07/2021, no. 20291, Cass. Civ. sez. I - 22/06/2020, no. 12220).
Moreover, for the Supreme Court, the risk should not be considered non-existent just because FGM has already been carried out, as it is possible for it to be repeated, for example after pregnancy (Civil cassation, section I - 28/10/2021, no. 30631). The Supreme Court also invites us to consider the danger of repatriation when the applicant is pregnant, as the gender of the unborn child could exacerbate the danger in the case of an unborn girl (Civil cassation sect. III - 18/03/2022, no. 8980). 
In this sense, Italian jurisprudence appears to offer a more advanced protection, even compared to the positions of the European Court of Human Rights, which, while recognising FGM as a form of torture, has often downgraded the danger as not actual in the event of repatriation. Emphasising elements that the Italian Supreme Court has instead deemed misleading and not symptomatic of the real situation of danger, rather it has warned the judges of merit against them on the basis of the principles mentioned above.[6]  
 What has been observed on the subject of FGM gives rise to a reflection. If it is true that we are dealing with practices with respect to which the host legal system is called upon to provide a form of 'protection' from culture, it is equally fundamental that, even in this protective action, the anthropological datum assumes a fundamental role together with consideration of the real extent of the damage for an optimal strategy in terms of balancing the interests at stake, both in the criminal sphere and when working in the field of international protection. The anthropological enquiry ‘fills in' the values, instances and fundamental rights involved by guaranteeing cultural rights, insofar as they are not concretely offensive to the values protected by the norms and/or are in the pursuit of the minor's interest in the criminal sphere; enhancing the persecutory mechanism that would otherwise be implemented with respect to individuals who do not share those cultural practices and who do not see a valid life alternative.

NOTEs

[1] Among them: The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (2011), which entered into force on 1 August 2014, ratified by Italy with law 77/2013, is the first specific legally binding instrument in this field. It deals with female genital mutilation in Art. 38 and adopts a concept of "mutilation" that deviates slightly from the classification proposed by the WHO because it excludes from the category the fourth type of FGM, and therefore the less severe forms; UNHCR, Guidance Note on Asylum Claims Regarding Female Genital Mutilation, 2009. Resolutions include those of the European Parliament corresponding to 2009, 2011, 2012, 2014, 2018 and finally the last one of February 2020_ European Parliament resolution of 12 February 2020 on an EU strategy to end female genital mutilation worldwide.

[2] In this regard, there has been talk of a form of 'squinting' multiculturalism, which often stigmatises cultural practices as criminally relevant behaviour, not necessarily on the basis of the index of offensiveness but rather 'depending on the deemed greater or lesser 'proximity' to Western civilisation or to a certain morality or religion' (Caterina, 2020).

[3] Court of Verona, 14 April 2010; Court of Appeal of Venice 2012.

[4] Trib. Torino, sez. GIP, 30 October 2018, no. 1626, Corta d'appello di Torino, sez. II, 26 February 2020, no. 1410. Cass. Pen. sez. V - 02/07/2021, no. 37422. This concerns genital mutilation operations performed on two minor sisters of Egyptian origin living in Italy, with the consent of their parents. The operations, carried out at the same time at a doctor's office during a holiday in the African country, resulted in the removal of the labia minora in one case and the excision of the clitoral hood in the other. For both of them, the technical consultancy pointed out disabling effects such as possible limitations of sexual functions, due to the severance of some nerve endings and possible obstetrical complications.

[5] Cass. Civ. sez. I - 22/06/2020, no. 12220; Cass. Pen. sez. V - 02/07/2021, no. 37422; Cass. Civ. sez. VI - 15/07/2021, no. 20291; Cass. Civ. sez. I - 25/10/2021, no. 29971; Cass. Civ. sez. I - 28/10/2021, no. 30631; Cass. Civ. sez. VI - 12/01/2023, no. 762; Cass. Civ. sez. - 16/02/2022, no. 5144; Civil cassation section III - 18/03/2022, no. 8980; Civil cassation section I - 14/07/2022, no. 22234; Civil cassation section I - 15/12/2022, no. 36845.

[6] The grounds of the Edu Court are anachronistic compared to the progress of the Italian courts and the assumptions reached by international and domestic law. In addition to the mere consideration of formal data (legal framework, criminal prohibition to perform the practices, practices that are only optional in the ethnic group to which they belong), sometimes the credibility of the applicants is questioned for not having denounced FGM in a timely manner, in other cases the strength and emancipation achieved by the applicants after their escape is valued as a symptomatic element of their ability to oppose such practices once they return home. For a more extensive discussion on the subject, see Crescenzi (2021). Some cases: Hirsi Jamaa and Others v. Italy [GC], Application No. 27765/09, judgment of 23 February 2012; R.W. and Others v. Sweden, Application No. 35745/11, decision of 10 April 2012; Ameh and Others v. United Kingdom, Application No. 4539/11, decision of 30 August 2011; Bangura v. Belgium, Appeal No. 52872/10, decision of 14 June 2016; Sultani v. France, Appeal No. 45223/05, decision of 20 September 2007; Jabary v. Turkey, Appeal No. 40035/98, decision of 11 July 2000; Izevbekhai v. Ireland, Appeal No. 43408/08, decision of 17 May 2011. Collins and Akaziebie v. Sweden, Application No. 23944/05, decision of 8 March 2007; H.L.R. v. France [GC], Application No. 24573/94, decision of 29 April 1997.