In this legally complex and sensitive matter, Merkel has welcomed the advice of her justice minister. The debate was triggered by a ruling by the Cologne Regional Court, which criminalizes the circumcision of boys for religious reasons. At first, the two women treated the matter as an aberration by a German regional court, which a higher court would later correct. How, after all, could a few judges from Cologne ban a religious requirement that Jews have observed for thousands of years, and one that all Muslims in Germany observe?
'A Token Of The Covenant'
The ruling, pronounced on May 7, only became public at the end of June. Since then, the controversy has been escalating almost daily. Suddenly the world isn't just interested in Merkel's European policy. People across the globe have become transfixed by those strange judges who want to forbid Jews and Muslims from performing a ritual that is as natural for them as baptism with holy water is for Catholics. When Merkel and Leutheusser-Schnarrenberger spoke on the phone once again on the weekend before last, they quickly agreed that they could not allow the debate to run rampant. They decided that the government would introduce a new circumcision law that, in the sober words of the secular constitutional state, would allow what the First Book of Moses puts in this way: "And ye shall circumcise the flesh of your foreskin; and it shall be a token of the covenant betwixt me and you."
The whole affair could, of course, be seen as a legal farce. Only a few countries have dared to regulate circumcision by law. It is readily practiced in many Western countries, even though it sometimes also the subject of heated debates. In Germany, however, there are sometimes laws and regulations stipulating what color roof tiles a homeowner may have and how often he is required to sweep the sidewalk in front of his or her house. Seen in this light, it's almost a miracle that German officials haven't taken on circumcision much earlier.
In the steering committee of her party, the center-right Christian Democratic Union (CDU), Merkel scoffed at the overly zealous judges, saying that Germany was turning itself into a "nation of jokers." She was also fully aware of how serious the matter is. Reconciliation with the Jews is an important part of government policy for Merkel. And she took the words of Dieter Graumann, president of the Central Council of Jews in Germany seriously. The verdict, said Graumann , could ultimately "make Jewish life in Germany no longer possible".
Germany is also home to about four million Muslims. Hardly anything could alienate them more than a verdict from the state declaring an important element of their religious tradition to be a crime.
Uncharacteristically for Merkel's second term, it isn't her own coalition that is giving her a headache. A majority of parliamentarians from both sides of the aisle -- the far-left Left Party excepted -- support a law clarifying the situation. Despite the political will, practical considerations have complicated the project. As honorable as the intention is to provide legal clarity, implementation is a challenge.
Balancing Two Fundamental Rights
Merkel and Leutheusser-Schnarrenberger are trying to force into a legal framework a tradition that has thus far been protected by social acceptance. It places two fundamental human rights at odds with each other. Children have a fundamental right to physical integrity. A circumcision is no minor operation, with the German Professional Association of Pediatricians calling it a "form of bodily injury". The child's right contrasts with those of parents, which include religious matters -- and in this case a ritual that goes back thousands of years and, for Jews and Muslims, is a vital component of their faith.
Balancing these fundamental rights is complicated. Furthermore, Justice Minister Leutheusser-Schnarrenberger is likewise concerned about the debate shifting in an unpleasant direction. Male circumcision isn't the only religious practice based on ancient traditions. Polygamy is another such practice, as is the prohibition of blood transfusions among Jehovah's Witnesses or the compulsory veiling of women in parts of the Islamic world. The question will arise as to why one practice is banned while the other is allowed. "We need a narrowly defined law on the circumcision of boys," says Justice Minister Leutheusser-Schnarrenberger. "This has nothing to do with the Sharia debate."
A relatively minor matter triggered hand-wringing. It began when a four-year-old boy named Ali al-Akbar lost a little blood on the evening of Nov. 4, 2010. That afternoon, Dr. Omar Kezze circumcised the boy in his Cologne practice at the mother's request. Kezze is a physician from the Syrian city of Aleppo and has had a private practice in Germany since 1991 and he has plenty of experience with circumcisions. Ali al-Akbar, whose name means Ali the Great, was one of many children whose parents came to Kezze's practice. It was a routine matter.
Kezze gave the boy a local anesthetic and applied the scalpel. The surgery didn't take long. After it was over, the mother took her son to a friend's apartment in the western part of Cologne, where they were staying. The boy was still bleeding at about 7 p.m., so Kezze went to the apartment, applied an additional compress and gave him painkillers. From a medical standpoint, everything "went perfectly", Kezze says today. The urological opinion prepared for the Cologne Regional Court confirms his assertion.
The boy continued to bleed, but according to the friend of the family, it was the mother's fault. She had apparently removed her son's dressing too early, preventing the wound from healing completely. The mother, 39 at the time, and a native of Tunisia, spoke only broken German and was also visually impaired.
'A Provocation To Muslims'
On the second day after the circumcision, she ran into the street in her pajamas, "screaming like a banshee," says the friend. A pedestrian found her "in a state of total confusion" and called an ambulance, which took the mother and her son to the University Hospital of Cologne. Doctors there put the boy under full anesthesia, opened and replaced the sutures, and stopped the bleeding.
Kezze, the doctor who performed the circumcision on Ali, still believes that this was unnecessary. He is upset about the trial, he says, even though he was acquitted, because he finds the ruling shameful, calling it a provocation to Muslims living in Germany. "I wonder if the same thing would have happened if the boy had been a Jew," he says.
Shortly after her son was admitted to the university hospital, Ali's mother jumped from the third floor of the hospital. She escaped with injuries but had to spend "a few days in the nuthouse," as her friend puts it. The friend doesn't know where the family is living today. She says that mother hadn't had any papers for Germany, and that she probably went back to Tunisia with her son. It's unclear, the friend adds, what happened to Ali the Great, who is now 6.
In early 2011, the Cologne public prosecutor's office filed charges against Omar Kezze for aggravated battery. The Cologne District Court refused to pursue the case. But the prosecutor appealed the verdict, and the Regional Court, in a second trial, ruled that the assault was not justified by the mother's consent. Circumcision alters the body of a child "permanently and irreparably," the judges wrote in their argument. But they also acquitted Kezze, arguing that the legal situation was unclear. According to the court, Kezze had acted in an "unavoidable mistake of law" and was therefore not guilty. The prosecutor's office allowed the deadline for an appeal to lapse. "This should never have happened, given the explosive nature of the case," says Jürgen Kapischke, the Cologne chief public prosecutor.
Rolf Dietrich Herzberg, a criminal law professor in the western city of Bochum, agrees with the Cologne court. He considers the removal of the foreskin for religious reasons to be a "violation of the fundamental right to physical integrity." If the ritual is viewed as a measure in the well understood interest of the child, Herzberg argues, it is "a heartless trivialization of what is done to children through circumcision."
The Difficulties Of Writing A Law
Herzberg is the person cited by legal scholars in the debate over circumcision. He is 74, a retired professor for the last nine years, and had given little thought to circumcision until he happened upon the book "The Lost Sons," by Islam critic Necla Kelek. In the book, Kelek describes the circumcision of her nine-year-old nephew. He didn't seem like a hero, she writes, but like a "tormented human child." Her description both repelled and fascinated Herzberg. He was particularly astonished that none of his fellow legal scholars had ever addressed the issue and promised Kelek he would do so. He enlisted the help of Holm Putzke, his academic assistant at the time.
For an ambitious academic, no matter what his field, an unresolved and somewhat relevant academic problem is a nugget. Putzke had published on all kinds of issues before, but circumcision promised to be much more exciting.
In February 2008, the results of Putzke's efforts were published in the commemorative publication to mark Herzberg's 70th birthday. The essay, "The Criminal Relevance of the Circumcision of Boys," is 41 pages long and has 222 footnotes. In it, Putzke argues that the physical integrity of a child can and must be give priority over the religious wishes of the parents. He knew that his ideas would be seen as provocative by both Jews and Muslims. In the essay, Putzke draws parallels with the debate over the Danish cartoons of the Prophet Muhammad. Despite the potentially explosive nature of his essay, academia has a duty to voice criticism, Putzke writes. He was prepared to fight.
The attacks did not materialize. It turned out that only the professional world was interested in the legal subtleties of circumcision. Only those pediatricians who made money with ritual circumcisions showed any anger toward Putzke, who they felt was unnecessarily questioned something that was taken for granted. In 2008, a group of doctors and lawyers met in Berlin to discuss the problem at length. The public heard little of the debate.
In other Western countries, the battle over circumcision has been raging for years. Other governments are having just as much trouble as Berlin with the complicated triangular relationship between parents, children and the state. Sweden is the only European country that expressly regulates circumcision. It applies strict requirements and only permits the practice in hospitals.
A Visit To Cologne
A look into the waiting room at Dr. Ulus' practice in Cologne shows that Germany is still relatively liberal when it comes to circumcision. Boys from all over Europe are sitting there with their parents, including an Iraqi-born family that has traveled from Norway. "We would only have had problems there," says the mother. Fearing that the youth welfare office would have taken away her son in Norway, the family decided to pay a visit to relatives in Cologne.
The French, who are especially strict about the separation between church and state, remain pragmatically silent on the issue. In principle, the removal of a boy's foreskins is considered assault, and consent of the parents only justifies the procedures in exceptional cases. There are no accounts of criminal charges having been brought to date. Similar situations apply in other European countries. Lawyers have expressed their concerns everywhere, and yet "we have not become aware of a legally binding conviction in any country," says the Max Planck Institute for Foreign and International Criminal Law in the southwestern German city of Freiburg.
The most heated debate is being waged in the United States, where up to 80 percent of men are circumcised in some areas. And skepticism is growing. The number of circumcisions of newborns has been declining for years, from 85 percent in 1965 to only about 55 percent today. The American Academy of Pediatrics takes a more reserved position than it did decades ago, now saying that the risks of the procedure also have to be taken into account.
Circumcision opponents periodically stage protests against what they call "genital mutilation." Since the early 1990s, the National Organization of Restoring Men has been fighting against "butchering babies." Celebrities are coming out against circumcision. Last summer, actor Russell Crowe tweeted: "Circumcision is barbaric and stupid". At the same time, an effort to ban circumcision in San Francisco failed.
A Visit To The Constitutional Court?
Opponents of circumcision are now looking to Germany, where legal experts will have to find a solution. It will not be an easy operation. To begin with, it's completely unclear which code of law should apply to the regulation of circumcision. The criminal code would be one option, but the problem with that is that the criminal code is only supposed to regulate criminal acts. Family law, which defines the rights of parents and children, is another option. Justice Minister Leutheusser-Schnarrenberger has pointed out that the law on the religious education of children is also a possibility. A clear, legal solution, as the German Association of Judges demanded on Friday, will be difficult to find.
The justice minister has appointed a task force of senior legal experts to address the complexities of the issue. The group, which includes the directors of the departments of civil law, criminal law and constitutional law at the Justice Ministry, will spend the summer brooding over how a law could neutralize the Cologne court's decision. "The matter is more complicated than just inserting a simple little sentence somewhere, as some people envision," says the minister. "After this emotional debate, I wouldn't rule out the possibility that the law will come before the Federal Constitutional Court. The judges there will have to determine whether they share the balancing of fundamental rights that we intend to make." This could take years.
Dr. Ulus from Cologne, the man who likes to listen to Bach, has been given a respite for a while -- because of Ramadan, not the debate. Things won't be busy at his practice again for another four weeks.
Intellpuke: You can read this article by Spiegel journalists Gerog Bonisch, Ozlem Gezer, Marc Hujer, Souad Mekhennet, Ralf Neukirch, Rene Pfister and Christophe Scheuermann in context here: http://www.spiegel.de/international/germany/circumcision-debate-has-german-government-scrambling-for-a-law-a-846144.html
This article was translated from the German for Spiegel by Christopher Sultan.