Whose Rights? The Danish Debate on Ritual Infant Male Circumcision as a Human Rights Issue . In: Contemporary Views on Comparative Religion, Peter Antes, Armin W. Geertz, Mikael Rothstein, eds., Equinox, 2016, pp.311-324

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"Whose Rights? The Danish Debate on Ritual Infant Male Circumcision as a Human Rights Issue". In: Contemporary Views on Comparative Religion, Peter Antes, Armin W. Geertz, Mikael Rothstein, eds., Equinox, 2016, pp.311-324
   brahim H Khan Rucker, Walter c. 2006. As the River Flows. Baton Rouge: LSU Press. Searle, John R. 1980. Minds, Brains, and programs. Behavioral and Brain Sciences 3(03): 417-457. http://dx.doi.org/10.1017 S0140525X00005756. Sullivan, Winnifred Fallers. 2005. The Impossibility o Religious Freedom. Princeton, NJ: Princeton University Press. Waldman, Marilyn Robinson. 2012. Prophecy and Power: Muhamrr;ad ~d the Qur an in the Light o Comparison, edited by Bruce B. Lawrence with Lmdsay Jones and Robert M. Baum, Sheffield: Equinox Publishing. Way, Max. 2010 Tenure-ous logic? Slavutych v. Baker, 35 years later:' In The Court, March 25, at http://www.thecourt.ca/2010/03/25/tenure ous- logic-slavutych-v-baker-35-years-later/ accessed 30 July, 2010. welsh, R.v. 2007 CanLII 39889 ON SC), at http://canlii.ca/t/ltlq7 accessed 21 July 2010. Professor Abrahim H. Khan, Faculty of Divinity, Trinity College, University of Toronto, khanah@chass.utoronto.ca. 310 24 Whose Rights? · The Danish Debate on Ritual Infant Male Circumcision as a Human Rights Issue Mikael Aktor How is it possible that at the beginning of the twenty-first century it is still controversial to suggest that males and females should be allowed to keep all of the body parts with which they are born? (Denniston et al. 2006: ix). In the call for contributions to this volume the editors explicitly expressed their wish that the volume should be a contribution to debate, not just a compilation of texts. This chapter discusses the relation between religion and human rights from the perspective of the current debate over ritual infant male circumcision RIMC). It argues for a clear prioritization of he rights of individuals in relation to authorities within religious or ethnic communities in all matters of importance for individual autonomy. In so doing, it questions the idea that the religious, ethnic or other minority status of a given group in Danish society may overrule a general legal protection of the individuals belonging to such minorities. It also asks scholars of religion to take a clear and rationally argued stand on these general questions when entering public debates related to religion's role in society that have consequences for their fellow citizens. In relation to the citizens who are the objects of RIMC, that is, underage, mostly neonatal, boys, the following discussion will attempt to clarify in what sense these persons have the rights of an individual vis-a-vis their parents or other seniors and in what sense the notion of protection is relevant at all for the debate on RIMC. 311 Contemporary Views on Comparative Rel  Mikael Aktor Background On 1 October 2013 the Parliamentary Assembly of the Council of Europe PACE) passed Resolution 1952 on Children s right to physical integrity.   The resolution deals with four types of violation of such rights: female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersex children and the submission to or coercior:i of children into piercings, tattoos or plastic surgery. The resolution, which according to PACE rules cannot be withdrawn, was met with strong protests from both Jewish and Muslim politicians and religious leaders. Most prominently, Israeli president Shimon Peres sent a personal letter to the Secretary General of the Council of Europe, Thorbj0rn Jagland, in which he expressed his concern for the Jewish communities across Europe which would be greatly afflicted to see their cultural and religious freedom impeded upon by the Council of Europe, an institution devoted to the protection of these very rights. Thorbj0rn Jagland sent a letter in reply, in which he assured Shimon Peres of the Council of Europe's continued commitment to religious freedom, while at the same time stating simply the facts that PACE is solely a consultative body and that nothing in the present legally-binding standards provides for a ban on RIMC in the same way that female genital mutilation has been banned. 2 While the subsequent international newspaper coverage focused mostly on the categorization of RIMC as a violation of a child's right to physical integrity and the Jewish and Muslim protests against this categorization, no one seemed to notice that an even stronger vocabulary was used in Recommendation 2023 to the Committee of Ministers that was passed together with Resolution 1952. These recommendations label the four areas of violation mentioned in the Resolution as a certain category of human rights violations against children, 3 thereby clearly identifying RIMC as a human rights issue to be dealt with by the member states. Already in October 2012 the international NGO Council on Violence against Children, a strategic partner of the UN Special Representative of the Secretary-General on Violence against Children, 4 addressed RIMC among a large number of various harmful practices in its report Violating 1. http: assembly. co e. int n w / xml/XRef/Xref-XML 2 HTML-en. asp?fileid=20174&lang=en (visited 28 April 2014). 2. Both letters are presented n full on the web page of the Israel Ministry of Foreign - fairs: http://mfa.gov.il/MFA/PressRoom/2013/Pages/Israel-calls-on-Council-of-Europe-to-rescind-anti-circumcision-resolution-4-0ct-2013.aspx (visited 28 April 2014). 3. http: assembly. co e. int n w / xml/XRef Xref-XML2 HTML-en. asp?fileid=20176&lang=en (visited 28 April 2014). 4. http://srsg.violenceagainstchildren.org/partnerships (visited 28 April 2014). 312 Whose Rights? C~i~dre~ s Ri~hts: Harm~ practices based on tradition, culture, religion or super-stition. Until recently, the repo.rt states, male circumcision has generally b~e~ chall~nged ?nly when earned out by non-medical personnel in unhygiemc settings without pain relief. But a children's rights analysis suggests t~at non-consensual,.non-therapeutic circumcision of boys, whatever the c~rcumstance.s, c~nstitutes a gross violation of their rights, including the ngh~ to physical i~tegrity, to freedom of thought and religion and to protecti?n from physical and mental violence INCV AC 2012: 22). In ~ts preface, ~he UN. Special Representative of the Secretary-General on y10lence ag~inst Ehildren, Martha Santos Pais, welcomes the report, whic~, she wntes, . presents a comprehensive inventory of harmful p:~cti~e~ that require urgent action by Member States, UN actors and civil society organizations, at the international, national and local levels INCVAC 2012: v). The debate about RIMC has been going on in the public domain for some decades. In articular, anti-circumcision activists ( intactivists ) and doctors have tned to draw attention to the fact that not all circumcised men are happy ~ith the choice made on their behalf, over which they had no say . For various reasons -medical, sexological, psychological, ethical, cosmetic -they a~e express.ed the sense that they have been subjected to a harn:ful op~~at10.n they did not want. The first international symposium on circumc1Slon in 1989 concluded by formulating a gender-neutral declaration which addresses these problems: In view of the serious physi c~l and s~chological consequences that we have witnessed in victims of circumc1Slon, we h~reb~ oppose th~ performance of a single additional unnecessary foreskin, clitoral, or labial amputation procedure. s :Vhat has moved ~he debate slowly from limited activist circles to the ~Ider sphere of the international media is, I believe, a combination of wo circums~ances . ~he first is the gradual spread of legal bans of ritual infant f~mal~ circumcis~on RIFC); the other is a sensational German court deci s10~ in 201~ :Vhich determined that only the introduction of a new law :ivhich explicitly legalized RIMC could prevent the operation from being illegal according to existing law. The consequences of the RIFC legislation o~ the ~~C debate will be discussed below. The German case involved the circumcis10~ of a fou:-ye.ar-old boy from a Muslim family who suffered post-operative comphcat10ns. The police were informed and the doctor prosecuted; the doctor was not only prosecuted for medical malpractice, but also more generally under the criminal code against bodily injury (understood as physical abuse or harm to another person's health). The case went through two courts, and the doctor was acquitted of the first charge. Regarding the second charge, the court confirmed that nothing 5. http://www.cirp.org/pages/intactivist/declaration/ (visited 1May2014). 313  Mikael Aktor in the existing law against bodily injury could justify non-medical ritual circumcision not being considered a breach of that law. Nevertheless the doctor was found not guilty of the second charge due to the lack of legal clarity and the fact that precedence had left the doctor with no indication of the illegal nature of the act (Levey 2013; Garde 2014: 10-11). The judges also deliberated the question as to whether RIMC s social adequacy Socialadaquanz), that is, as an activity which historically has been de facto accepted by society, should be reason enough to acquit the doctor; they found that in the context of the serious nature of the operation (the cutting and removal healthy tissue) this kind of social adequacy did not justify such a dispensation (Lassen 2013: 8-12; Garde 2014: 10). The court ruling prompted both national and international protests, but was not appealed, and no one was able to point out any legal flaws. Instead, the German government passed a new bill that explicitly allows parents the right to have their new-born baby boys (not girls) circumcised without medical reasons but according to medical standards nach der Regeln der artzlichen Kunst); thus boys less than six months of age may be circumcised by a circumcision expert within a religious community who is properly trained for the task but not qualified as a doctor. To avoid having special laws directed at specific religious communities, the new legal status of ritual circumcision is not dependent on any sort of religious motivation (Levey 2013: 327; Lassen 2013: 16). RIM in th Danish Health Care System The legal situation in Denmark is similar to that of Germany prior to the new circumcision bill, in the sense that RIMC constitutes an exception to an already existing law. In Denmark there is no law that explicitly exempts RIMC from being punishable according to the law against bodily injury §§ 244-245 in the Danish criminal code). On the contrary, it is obvious, according to former criminal judge Peter Garde, that RIMC is a clear violation of these laws (Garde 2014: 18). But, paradoxically, that does not mean that it is illegal, since in the absence of clear legal authority circumcision has been legalized -also in Denmark -by what Marie Fox and Michael Thomson (Fox and Thomson 2009: 15) call ' soft' law sources in the form of guidance issued by professional medical bodies. Already in 2005 the Danish Health and Medicines Authority (Sund- hedsstyrelsen) issued guidelines for RIMC. After a public hearing, these rules have been revised (but only very slightly) in 2014.   The guidelines sidestep existing law in a couple of ways. First, RIMC has been made a legal guideline focus of the Health Authority by its definition as a surgical operation, although it is regarded by the Authority as an operation 6. https://www.retsinformation.dk/Forms/R0710.aspx?id=162591(visited3 May 2014). 314 Whose Rights? that is neither medically nor cosmetically motivated. Here the Health Authority defines a cosmetic treatment as one where the aim is to alter or improve the appearance. 7 I cannot think of any other surgical operation performed within the Danish health services defined with the same characteristics (neither medically nor cosmetically motivated). Why is it important for the Health Authority to exclude RIMC from the category of cosmetic operations? Probably because such operations demand personal adult consent, according to existing law. For instance, it is not permissible to tattoo the body of a person below 18 years of age even with parental consent. The consequence of this is that, if parents insist on having their boy circumcised in order to change the appearance of his penis only, such an operation would be illegal; on the contrary, a religious reason makes the operation not forbidden, as it is formulated by the Health Authority. 8 A more strict formulation would be that it is not punishable although it is against existing law against bodily injury. Second, only a person who is authorized to practise as a medical doc tor is allowed to perform surgical operations according to the Danish law of authorization of health personnel. Since 2009, however, public hospitals in Denmark have not performed circumcisions unless there is a medical reason for doing so (which is very rare). Muslim families therefore choose to have the operation performed at private medical clinics. Jewish parents (of the relatively small Jewish population in Denmark) who want to have their baby boys circumcised-and not all DanishJews want that -have it done by the chief rabbi in his function as a trained mohel. To adjust to this situation, the guidelines of the Health Authority artificially allow that the operation may be performed by an assistant in terms of he authorization law (Danish: medhjrelp) if it is monitored by a medical doctor, who is responsible for medical standards being met. This is the only instance where the role of an assistant, in terms of the authorization law, is assigned to a person with no education within the health services (normally an assistant is a nurse or a laboratory technician or similar). There can be no doubt that the guidelines in this case have been formed in order to adjust to the de facto situation rather than to regulate it. As a consequence of these guidelines, any person is allowed to perform a non-therapeutic and non-cosmetic circumcision on a baby boy so long as there is parental consent and a medical doctor willing to be present and take responsibility for medical standards. 7. http:/ prodstoragehoeringspo blob.core. windows.net/ 2oc3041 o-ds6d-4cos sad4-e6s2323f1c1e/H%c3%Bsring%2oover%2orevideret%20vejledning%200m%20 omsk%C3%A6ring%20afoAi20drenge.pdf (visited 3 May 2014). 8. http://sundhedsstyrelsen.dk/ da/ nyheder 2014/vejledning-om-omskaering-afdrenge (visited 3 May 2014). 315  Mikael Aktor Rights when the Parliamentary Assembly of the Council of Europe and the International NGO Council on Violence against Children undertook a critical assessment of IM ~it was, as mentioned above; from the perspective of a children's rights analysis (INCVAC 201~: 22). ;:vhat ~re those rights? The PACE Resolution 1952 focuses on the right o physical integrity. This terminology - integrite ph~sique - was menti?ned m t~e drafts of the UN Declaration of Human Rights, but was not included m the final version (Garde 2014: 7). However, the idea penetrates human rights thinking in the sense of protection against arious attacks on or limitations of bodily autonomy, such as torture, violence, slavery, ~on- finement without legal proceedings, forced non-consensual operations with no medical benefits, etc. . The notion of physical integrity is intellectually important because it offers a reason for the double perspective of human rights, being both individual and universal. This is at the heart of Bryan Turner's explora tion of a common foundation to human rights in the form of a normative sociology able to resist anthropological relativism in ~is essay vulnerability and Human Rights (Turner 2006: 6, 9). Human rights are rights enjoyed by individuals by virtue 11 ofbeing ~;na~ -and a s a.consequence of their shared vulnerability ; they are um~ersal prmci~les, because human beings share a common ontology that is grounded m ~ shared vulnerability (Turner 2006: 3, 6; italics added). In other words; the human body is both the index of individual personhood (note how identification is obtained by bodily indexical signs, such as fingerprints, handwriting or voice recognition) and the metony.m of a hared humanity (note how humanitarian work is address~d m particular .t?wards bodily sufferings such as hunger, dise~se or v~ole~ce . As. a c~it~qu~ of anthropological relativism towards child prostitution or discrimination of women, Turner writes: I argue ... that there is a common underpinning to human rights that recognizes the force of cultural relativism in anthropological research but asserts a minimal ontology: we are all wounded creatures. The anthropological criticism of this argument might be that vulnerability is culturally variable and cannot, for example, be employ~d to suggest that children in Western societies are vulnerable rather hke children in rural Thailand. Vulnerability may be defined in an elementary or minimal fashion, however. It is our propensity toward morbidity and inevitable mortality. (Turner 2006: 54). 9 9. For discussions and to some extent applications of cultural relativism in the ~n- thropology of child circumcision, see, for instance, Androus 2009 and Malmstrom 2013. 316 Whose Rights? Turner's argument explains why the idea of physical integrity is such an important parameter when drawing lines between acceptable and nonacceptable human interaction. We should be aware, however, that bodily integrity seen from the perspective of the individual is also about bodily autonomy, a person's ownership of his/her own body. Generally, only strong medical reasons are allowed to interfere with that autonomy, as with compulsory vaccination programmes in the event of epidemics. children's Rights Since the UN Convention of the Rights of the Child (CRC) 10 was adopted in 1989 the children's rights perspective has been assigned increasing weight in international law. The Convention has been ratified by all 193 member states of the UN except Somalia, South Sudan and the USA. It was ratified by Denmark in 1991.   Several formulations are relevant for the debate on RIMC. Childhood is seen as a preparation for an individual life in society (preamble). Although in need of parental or other adult protection, the child's freedom of thought, conscience and religion must be respected, and although parents have the primary right. to bring up children, it is their duty to do so in a manner that respects the gradually evolving capacities of the child in this respect (Article 14). In relation to the irreversibility of genital circumcision, these formulations mean that the status of the child as an individual under the guidance of its parents or guardians and its future full individual life in society as an adult demands that no such irreversible non-therapeutic bodily modifications are to be made as long as the child is not in a position to give his/her own consent. The protection against irreversible genital modifications in childhood is therefore a protection of the future individual adult's sexual rights, for men as for women. It is the duty of the state to secure that the child is protected against all forms of physical or mental violence while cared for by parents or guardians (Article 19). All forms means any form whatever the reason, including a religious or minority rights reason. The General Comments No. 13 issued by the UN's Committee of the Rights of the Child is absolute: No exceptions The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. All forms of physical or mental violence does not leave room for any level oflegalized violence against children. Ft;equency, severity 10. http://www.ohchr.org/EN/Professionallnterest/Pages/CRC.aspx (visited 4 May 2014). 11. https:/ treaties.un.org/Pages/ViewDetails.aspx?src=TREATY &mtdsg_no= IV-1l&chapter=4&lang=en (visited 4 May 2014). 317  Mikael Aktor of harm and intent to harm are not prerequisites for the definitions of violence. States Parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child's absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and or socially acceptable. (UNCRC 2011: 8; italics added) The Comment is clear that violence is not limited to acts that are done with an intention to harm. This, of course, is relevant to RIMC, as this is generally performed with the best of intentions: to include the boy in the religious or cultural community of his family. The document urges states to formulate clear legal definitions of violence (UNCRC 2011: 8), and it supplies a lengthy list of violent acts that must be accounted for in such definitions. In this list we find among harmful practices explicit mention of female genital mutilation, but not of the corresponding male genital mutilation. Does that mean that RIMC is not a violent act according to the Comment? In principle, it remains a mat ter of interpretation, for in the same category, harmful practices, we also find violent and degrading initiation rites (UNCRC 2011: 11). As a scholar of religion, I think it is virtually impossible not to regard RIMC as precisely a violent initiation rite, just like the many other initiation rites in our ritual inventory. As we know, ritual violence is a widely common ingredient of rites de passage but in a human rights perspective what really matters is to what extent people go through such rites willingly and freely. Violence is first of all characterized by the use of force against the wish or the best interests of he subject; and, according to the Comments just quoted, best interests must not erode the absolute right to physical integrity. The Comments are actually surprisingly clear. From these Comments and with our knowledge as scholars of religion, a fair conclusion with respect to the human rights of children must be that violent initiation rites must involve the consent of the subject. Since Article 19 entrusts to the state the duty to protect the child against all forms of violence while in the care of parent(s), legal guardian{s) or any other person who has the care of the child, it follows that the consent of such custody holders cannot substitute the child's own consent. The logical conclusion seems to be that violent initiation rites such as RIMC must be regulated by an age limit that guarantees that such rites are performed only on the basis of the subject's free choice. Violent or degrading initiation rites are in fact accounted for by the Convention text itself, but with a medical twist. Article 24, § 3 rules that States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. The controversial point here is the definition of health. Is RIMC 318 Whose Rights? prejudicial to the health of boys? Clearly the guidelines of the Danish Health Auth~rity discussed ~bove adopt a narrow understanding of h~alth, .meamng absence of disease or other medical conditions. In the ~iscuss10n of. medical risks following the public hearing, the Authority only considered possible post-operative complications. The rate of such complications was considered too low to motivate a ban on RIMC But this is a very narrow concept of health, which runs counter to th~ much more holistic definition promoted by the UN Committee on the Rights of the Child. In its General Comments to Article 24 it adopts the unde.rstanding of health recommended by the WHO: a state of complete physical, mental and social well-being and not merely the absence of disease or. infirmity. Children's right to health is, therefore, also a right to grow and develop to their full potential (UNCRC 2013: 3). Does RIMC impede ;he ~ll bodil~ potential o~boys and of the future men they will becom~ While the_re is ?o worldwide consensus among medical doctors regarding the phys10logical and sexological effects of RIMC, a knowledge of the anatomy and. ~iysiology of the male prepuce no doubt suggests - as ~n absolutely mimmal statement - the conclusion of urologists Dun ~mmr ~nd. Gordon (1999: 8) that a vestigial structure it almost certainly is not. First of all, the foreskin protects and maintains the mucous membrane of the glans penis and is provided with a large number of e_r~genous nerves specific to that structure. Having examined the sensitivity of the prepuce by mapping the fine-touch pressure thresholds of the entire penis of both circumcised and non-circumcised men, Morris L Sorrells et al. (2007) concluded that Circumcision ablates the most sensitive parts of the penis. Add to this that circumcision is irreversible, and attempts to restore the foreskin by stretching the shaft skin only allow for the devel?pment of ordinary skin, without the specialized sensitivity of the foreskin. More recent research by a group of paediatricians from 11 European countries concludes that nontherapeutic circumcision of underage boys in _YVeste.rn societies has no compelling health benefits, causes po~toperative pain, can have serious long-term consequences, ... and conflicts with the Hippocratic oath: primum non nocere: first do no ?arm_ F~isch et al. 2~13:. 799). From_ a rights perspective, howeve;, RIMC is a v10lation of a boy s nght to bodily autonomy and - as an irreversible genital modification -of the adult man's sexual rights. Boys Rights '.'~en Denmar~ pa.sse~ a law t?at prohibited all types of female circumcision and mutilat10n in 2003 it was also with reference to Article 24 § 3, of h~ UN's .con~enti?~ of the Ri?hts of he Child; the law provid~d protect10n against traditional practices prejudicial to the health of children. Why does the same rule not apply to RIMC, and what is the reason 319
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