Introduction
On 24 May 2024, the Committee on the Rights of the Child (the Committee) adopted its Views in H.H. on behalf of Sa.A.A. and Su.A.A. v. Denmark. The case concerns two children, represented by their mother (H.H.), where, if the family was deported to Somalia, the girl (Sa.A.A) was held to be at risk of being subjected to female genital mutilation (FGM) and the boy (Su.A.A.) was held to be at risk of being subjected to male circumcision. FGM is widely recognised as constituting torture as well as being a form of persecution. Deportation of a person at risk of being subjected to FGM would thus be a violation of the principle of non-refoulement. Sa.A.A. and Su.A.A. v. Denmark is one of several complaints against Denmark before the Committee in the deportation context, a number of which have concerned FGM. In fact, the Committee’s very first Views, in I.A.M. on behalf of K.Y.M. v. Denmark, concerned this issue (commented on here by Julia Sloth-Nielsen). In this case note, I comment on two aspects of the Committee’s Views in Sa.A.A. and Su.A.A. v. Denmark: first, briefly, on the Committee’s application of the principle of iura novit curia and secondly, the issue of state obligations of non-repetition.
Summary of the facts
H.H. entered Denmark in June 2014 and received a temporary residency and protection status in January 2015. In 2016, H.H. applied to renew her residence permit, but in March 2018 the Danish Immigration Service refused this, finding that she no longer faced a risk of persecution and that her earlier statements were not considered credible. After giving birth to her daughter, Sa.A.A., in October 2018, H.H. applied for asylum on the child’s behalf in May 2019. H.H. argued that her daughter risked FGM and violence from Al-Shabaab if returned to Somalia, as well as being at risk of abuse from non-state actors due to being a non-circumcised girl from Europe. The Danish authorities (the Immigration Service and, upon appeal, the Refugee Appeals Board) rejected the application, concluding that H.H. was resourceful enough to protect her daughter from FGM even if subjected to pressure from family and the local community.
In September 2020 the departure deadline was extended as H.H. was once again pregnant. Her son, Su. A. A., was born that same month. In October 2020 H.H. applied for asylum for Su.A.A., citing threats from a man she had previously been in conflict with and fears that the paternal grandmother could take her son away. The Danish Immigration Service rejected this application in January 2021, again referring to credibility concerns expressed in the earlier decision and finding that H.H.’s fears were based on assumptions. In January 2021 H.H. also unsuccessfully requested a reopening of her daughter’s case. On appeal, H.H. argued that Somali traditions would separate her from her children and that their paternal grandmother would have them circumcised. However, the Refugee Appeals Board in March 2021 maintained H.H. had sufficient ability to resist social pressure and protect her children from circumcision. In December 2021, the Refugee Appeals Board upheld the refusal of asylum for her son, confirming the earlier decisions.
Complaint
H.H. claimed that if Sa.A.A. and Su.A.A. were deported to Somalia, their rights under Article 3 of the Convention on the Rights of the Child (CRC) (best interests), Article 12 (the right to be heard) and Article 19 (State obligations to protect children from physical and mental violence and maltreatment) would be violated. She also argued that a deportation would not be in line with General Recommendation No. 32 (2014) of the Committee on the Elimination of Discrimination against Women (CEDAW) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women. The children would be at risk of being subjected to FGM and male circumcision, respectively, practices that are widespread in Somalia and deeply rooted. Regarding the possibility of avoiding FGM, H.H. argued that country of origin information did not clearly show whether parents could resist it, and that the Danish authorities themselves had stated that a parent’s ability to withstand social pressure depended on their personality and committment. H.H. argued that she, due to her personal circumstances, would not be able to resist social pressure and protect her children. H.H. also claimed that the rights of her children under Articles 3 and 19 CRC could not be made dependent on their mother having the ability to resist family and social pressure. She moreover argued that Denmark had not aligned its practices with the Committee´s guidance on the best interests of the child and the principle of precaution (para. 5.6).
In its response to the complaint, Denmark argued that the allegations based on CEDAW did not fall within the Committee’s jurisdiction and therefore should be declared inadmissible. On Article 12, the State party held that the two very young children’s views had been represented through H.H., thereby fulfilling the State’s obligations under that provision. On Article 19, the State party submitted that H.H. had not sufficiently substantiated that the two children would at risk of irreparable harm if deported to Somalia, and that the claim therefore should be declared inadmissible. The State party moreover held that its examination of the evidence has been thorough and comprehensive and that H.H. had failed to identify irregularities in the decision-making process or risk factors not considered by Danish authorities. The State party also referred to jurisprudence from the European Court of Human Rights (ECtHR) in support of the emphasis put on the mother’s presumed ability to resist social pressure.
Views adopted by the Committee
The Committee found the claims relating to CEDAW to be incompatible ratione materiae with the provisions of the CRC and declared them inadmissible under Article 7 (c) of the Third Optional Protocol on a Communications Procedure (OPIC). The Committee also declared inadmissible, under Article 7 (f) of the OPIC, the allegations under Article 12 (which were found to be insufficiently substantiated) as well as the claims regarding Su.A.A. and the risk of him being subjected to male circumcision if deported to Somalia. The Committee noted that it is still unclear whether non-medical required male circumcision would itself violate a Convention right, and that H.H. had not shown a real and personal risk of the boy being circumcised against his parent’s will (para. 7.7.). However, the Committee did find admissible the claims under Articles 3 and 19, and also found that H.H.’s claims on behalf of her daughter Sa.A.A. raised issues in substance under Article 37 (a) of the Convention (”No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”) even though the Article had not been invoked by the author of the communication.
On the merits, the Committee recalled that States must pay utmost attention to child-specific persecution and gender-based violence, and that non-refoulement obligations under Articles 6 and 37 apply regardless of the source of the threat or whether the risk stems from direct or indirect actions. The Committee then concluded that the State party had failed to consider the best interests of the child (Article 3) when assessing the risk of Sa.A.A. being subjected to FGM and that returning the girl to Somalia would constitute a violation of Articles 19 and 37 (a). The Committee based its conclusions on the fact that the Refugee Appeals Board’s assessment that the mother (H.H.) would be able to resist social pressure to circumcise her daughter was not based on a specific evaluation of the personal context to which the family was to return and did not take the best interests of the child into account. Although the capacity of parents to protect their child might be of crucial importance, this cannot be asserted without a thorough analysis of the specific, individual context. The Committee here referred to its previous case law on the risk of FGM in Somalia according to which the rights of the child under Article 19 cannot be made dependent on the ability of a parent to protect the child. The Committee also noted that Denmark’s interpretation of regional jurisprudence neither exempts it from its CRC obligations nor justifies non-compliance with the Committee’s Views under the OPIC, and that the regional case law does not appear to conflict with the Committee’s previous Views.
The Committee furthermore pointed out that determining the best interests of children in the asylum context presupposes their situation to be assessed separately from that of their parents. It also stressed that, under the precautionary principle, a child must not be deported if there is reasonable doubt that the receiving State will provide adequate protection against harmful practices such as FGM. These standards, the Committee found, were not met in the case of Sa.A.A.
Commentary
The Committee has, as already mentioned, addressed the risk of FGM in on the risk of children being subjected to FGM in Somalia in several Views previous to Sa.A.A. and Su.A.A. v. Denmark. In these cases the Committee also found Denmark to be in violation of Articles 3 and 19 of the Convention, making the conclusion in the present case unsurprising. However, that the Committee found a deportation of Sa.A.A. to amount also to a violation of Article 37 (a) deserves a brief comment. That the Committee should invoke Article 37 (a) ex officio was advocated for in partly dissenting opinions by the Committtee member Luis Ernesto Pedernera Reyna in Y.A.M. v. Denmark, S.M.F. v. Denmark and S.H.K. v. Denmark (in S.H.K. v. Denmark he was joined by the Committee members Sophie Kiladze, Mikiko Otani and Benoit Van Keirsbilck). Pedernera Reyna and his collegagues argue that as FGM is generally recognised as constituting torture it therefore should be addressed under the provision expressively prohibiting such treatment. Following the legal principle of iura novit curia (the court knows the law) the partly dissenting opinions argue that the Committee may indeed, when necessary, invoke rights not mentioned in a communication. Otherwise, onerous responsibility would be put on the author of a communication, who may or may not be a child and may or may not be represented by counsel able to guide them.
In Sa.A.A. and Su.A.A. v. Denmark the arguments presented in the partly dissenting opinions seems to have finally convinced the majority. Although this is not the first time the Committee invokes Article 37 (a) even if it was not mentioned by the authors of a communication the Committee’s change of course in this case constitutes a broadening of the original approach (commented upon by Klassen and Rodrigues) which focuses primarily on the non-refoulement dimension of state obligations under Article 19. By explicitly addressing FGM as an issue triggering the State’s non-derogable obligation to prevent children from being subjected to torture, the Committee emphasises the particular status of the prohibition of torture as a jus cogens norm. It is a pity, though, that the Committee does not take the opportunity to discuss its approach to iura novit curia (recently commented on by Eduardo Rezende Melo) and whether this is a way for the Committee to address issues such as disparities between parties.
Another issue raised in Sa.A.A. and Su.A.A. v. Denmark concerns the obligation of non-repetition. Rule 27(4) of the OPIC Rules of Procedure prescribes that in cases where a violation of the Convention or of the Substantive Protocols is found, the Committee will make recommendations on the remedies for the alleged victims such as, for example, guarantees of non-repetition. Remedies may be individual or collective or more systemic remedies aimed at preventing future violations of rights. Liefaard in a recent article notes how the Committee in its case law has focused on general or systemic recommendations to States parties, often formulated more specifically than individual remedies. The Committee’s recommendations in Sa.A.A. and Su.A.A. v. Denmark is a good example of such systemic remedies, Denmark being called upon to ”take all steps necessary to prevent similar violations from occurring in the future” (para. 9). Denmark is particularly requested to ensure its asylum procedure takes the best interests-principle duly into account and that the individual circumstances to which a child is returned are accorded sufficient weight in the risk assessment.
It is a basic rule of international law that a breach of international law by a State entails its international responsibility. This responsibility includes, among other aspects, the responsibility to prevent the repetition of the wrongful act. Article 2 of the CRC, like other human rights treaties, provides that State parties ’shall respect and ensure the rights set forth in the present Convention’. ’Ensure’ indicates an obligation both to prevent rights violations from occurring in the future and to prevent recurrence of violations already having taken place. State parties are also, as stated in Article 4, to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention. OPIC Article 11 requires State parties to give due consideration to the Committee’s Views. Finally, Article 26 of the Vienna Convention on the Law of Treaties requires States to give effect to their treaty obligations in good faith. Thus, it is clear that Denmark, in order to provide the remedy recommended multiple times by the Committee, should have taken the necessary steps to ensure its asylum procedure in cases concerning children complied with its CRC obligations long before Sa. A.A.’s mother submitted the communication in 2021.
The concrete, long-term impact of the Committee’s recommendations in the Danish FGM cases may so far be described as mixed. In relation to the first case, K.Y.M. v. Denmark, the Danish Refugee Board issued a statement saying that it would not follow the Committee’s recommendations as they were ’at odds with the Board’s general practice in cases concerning female genital mutilation (FGM), as well as with the case law of the European Court of Human Rights in similar cases’. No similar statements have been issued in relation to the more recent cases. Instead, the applicants’ asylum claims have been reassessed and the applicants have been granted protection. In the individual cases, repetition of the violation thus has been avoided. From a systemic point of view, however, the recommended remedies appear to have had less impact, something manifested not least by the fact that, since 2018, the Committee has received a number of communications concerning cases with very similar circumstances. Denmark thus seems less inclined to avoid repetition by changing its practice than to, when called out, make amends in the individual case. While the reasons for this are most likely a mix of legal and political considerations, the details of which lie beyond the scope of this case note, it seems clear that the long-term impact of the Committee’s Views at least in this context lies more at the individual than the systemic level.