SPIEGEL ONLINE - March 29, 2007, 05:27 PM
URL:
http://www.spiegel.de/international/germany/0,1518,474629,00.html
GERMAN JUSTICE FAILURES
Paving the Way for a Muslim Parallel Society
A recent ruling in Germany by a judge who cited the Koran underscores the dilemma the country faces in reconciling Western values with a growing immigrant population. A disturbing number of rulings are helping to create a parallel Muslim world in Germany that is welcoming to Islamic fundamentalists.
She didn't know it, nor did she even expect it. She had good intentions. Perhaps it was a mistake. In fact, it was most certainly a mistake. The best thing to do would be to wipe the slate clean.
Last week, in the middle of the storm, Christa Datz-Winter, a judge on Frankfurt's family court, was speechless. But Bernhard Olp, a spokesman for the city's municipal court, was quick to jump in. Olp reported that the judge had been under emotional stress stemming from a murder that had been committed in her office 10 years ago, and that she was now planning to take a break to recuperate. He also mentioned that she was "outraged" -- not about herself or her scandalous ruling, but over the reactions the case has triggered.
The reactions were so fierce that one could have been forgiven for mistakenly thinking that Germany's Muslims had won the headscarf dispute and the controversy over the Mohammed cartoons in a single day and, in one fell swoop, had taken a substantial bite out of the legal foundations of Western civilization.
The ensuing media furor came from both sides of the political spectrum. The left-leaning daily Die Tageszeitung ran a story on the case titled: "In the Name of the People: Beating Allowed," while the right-wing tabloid Bild called it "An Outrageous Case!" The same unanimity across party lines prevailed in the political realm. "Unbearable," was conservative Bavarian Interior Minister Günther Beckstein's ruling, while Lale Akgün, a member of parliament of Turkish origin and the Social Democratic Party's representative on Islamic issues, commented that the Frankfurt judge's ruling was "worse than some backyard decision by an Islamist imam." Even the deputy head of the Green Party's parliamentary group, Hans-Christian Ströbele, noted that a German judge is obligated to uphold German law.
The original purpose of the case was not to carry the clash of cultures into the courtroom. Instead, the case brought before Frankfurt's family court was that of a 26-year-old German woman of Moroccan origin who was terrified of her violent Moroccan husband, a man who had continued to threaten her despite having been ordered to stay away by the authorities. He had beaten his wife and he had allegedly threatened to kill her.
But German law requires a one-year separation before a divorce can be completed -- and exceptions for an expedited process are only granted in extreme situations. When the woman's attorney, Barbara Becker-Rojczyk, filed a petition for an expedited divorce, Judge Christa Datz-Winter suddenly became inflexible. According to the judge, there was no evidence of "an unreasonable hardship" that would make it necessary to dissolve the marriage immediately. Instead, the judge argued, the woman should have "expected" that her husband, who had grown up in a country influenced by Islamic tradition, would exercise the "right to use corporal punishment" his religion grants him.
The judge even went so far as to quote the Koran in the grounds for her decision. In Sura 4, verse 34, she wrote, the Koran contains "both the husband's right to use corporal punishment against a disobedient wife and the establishment of the husband's superiority over the wife."
A disturbing pattern of rulings
Put plainly, the judge argued that a woman who marries a Muslim should know what she's getting herself into. In Germany, no less. Leading German feminist Alice Schwarzer argued that this was tantamount to a "softening of our legal system" that is "by no means a coincidence." Germany's only minister of integration at the state level, Armin Laschet, a member of the conservative Christian Democratic Union (CDU) from the state of North Rhine Westphalia, sees the Frankfurt ruling as the "last link, for the time being, in a chain of horrific rulings handed down by German courts" -- rulings in which, for example, so-called honor killings have been treated as manslaughter and not murder.
This, says Berlin family attorney and prominent women's rights activist Seyran Ates, is part of the reason one should "be almost thankful that (judge Datz-Winter) made such a clear reference to the Koran. All she did was bring to the surface an undercurrent that already exists in our courts." Out of a sense of misguided tolerance, says Ates, judges treat the values of Muslim subcultures as a mitigating circumstance and, in doing so, are helping pave the way for a gradual encroachment of fundamentalist Islam in Germany's parallel Muslim world. It's an issue Ates often runs up against in her cases. "In Frankfurt," she says, "someone expressly openly for the first time what many are already thinking."
Ursula Spuler-Stegemann, an Islam expert from the central German university town of Marburg, has a similar take on the matter. "Do we already have Sharia here?" she asks, adding that the Frankfurt case shows that "things are getting out of hand here."
Does the unspeakable decision by a single Frankfurt family court judge truly mark a new stage in the German judiciary's unspoken policy of appeasement toward aggressive Muslims? Or is the collective outcry so loud and nonpartisan this time because the case is so clear? Is it because everyone believed that the debate, raging for years and still unresolved, over the issue of how much immigration the Germans should tolerate and how much assimilation they can expect was finally coming to an end? And because this particular case was about violence, the lowest common denominator on which everyone from left-leaning feminists to neoconservatives could agree?
And now that the danger has been recognized, is it being addressed quickly? Not exactly.
An abuse of the liberal state
Frankfurt family court judge Datz-Winter was removed from the case and the courts proved themselves capable of acting responsibly. In many other cases in Germany, however, the liberal nature of the constitutional state has been misused -- and a misguided approach to tolerance has been turned into self-sacrifice. But isn't it the court's job to protect the liberalism that has taken Germans so long and so much effort to achieve -- and with zero tolerance for intolerance, if need be?
The questions this raises in the context of social reality are agonizingly difficult, even insulting to many, and they lead us into a web of taboos that has developed over time. Those who move within this web often cannot help but rub someone the wrong way.
The debate that Judge Christa Datz-Winter has now revived once again seems to afflict Germans like bouts of fever. It revolves around the question of how much assimilation the constitutional state can or must demand from immigrants. Will the Germans accept the sometimes outmoded customs of other cultural groups? In other words, will they permit groups to not just live in a society that parallels German society, but to also live their lives in an entirely different age and at a completely different pace? Is Germany not obligated to integrate those who are foreign to its society and bring them into the present?
Just as battles are often waged around flags, social conflicts tend to erupt around symbols -- the headscarves worn by female teachers, the minarets that are changing the appearance of some towns, the severed head of the Prophet Mohammed in the Berlin production of the opera "Idomeneo," and the harmless Danish cartoons depicting Mohammed, triggering an outcry that led to the torching of Western flags and embassies worldwide in 2005. But social conflicts also arise over seemingly minor issues. For example, if churches can ring their bells, why shouldn't the muezzin be allowed to call the Muslim faithful to prayer -- at 5:45 in the morning?
Because Germany became a country open to immigration some time ago, it now urgently needs guidelines on how rigidly it should enforce its standards and how it should treat its new arrivals -- as well as how the country expects them to behave.
As this debate becomes more and more urgent, Germans ought to be thankful to the Frankfurt judge for naively stepping into the web of taboos. The problem Germany faces with its deeply religious Muslim immigrants is not unlike the challenge modern Israeli society faces in dealing with orthodox Jews. Fundamentalists -- including Muslims in Germany --- tend to produce large families, so that the men and women of the past could very well lay claim to a substantial share of the future. According to a study by the University of Tübingen, the number of fundamentalist Muslims in the country will have more than doubled by 2030.
For far too long, Germany's muslim immigrants were not asked to put much effort into integrating. For decades, German judges essentially paved the way for Islamic fundamentalists to form a parallel society. They raised little opposition to the strategy employed by Islamic groups to demand their supposed religious freedom in court until they got it. But the judges must have known, argues Johannes Kandel, that "giving preferential treatment to groups violates the principle of equal treatment in a secular legal system." Kandel heads the intercultural dialogue group at the political academy of the Friedrich Ebert Foundation, which is closely alligned with the center-left Social Democrats.
Citing the freedom of religious expression guaranteed under the German constitution, judges in Germany permitted Muslims to withdraw their children from swimming lessons or to forbid them from taking part in school celebrations or school trips. This allowed outdated concepts of chastity from places like Turkey's highly traditional eastern Anatolia region to survive in an otherwise enlightened Europe. But religious freedom, says Udo Di Fabio, a judge on Germany's Federal Constitutional Court, the country's highest judicial institution, is no "basic right deluxe," but rather one of many constitutional rights -- and one that constantly has to be weighed against other rights.
"We were far too negligent for much too long," says Andreas Jacobs, the coordinator for Middle East policy and Islamic countries at the Konrad Adenauer Foundation, which is aligned with the conservative Christian Democrats. Wolfgang Bosbach, the deputy chairman of the CDU's parliamentary group says he sees the ruling as an indication "that we are gradually putting our own concepts of the law and values up for grabs." But Jacobs believes it is instead a kind of aftershock of the naïve multicultural illusions of recent decades.
A much-delayed wake-up call
"Finally the reactions to this nonsense are showing that sensitivity has become much greater than it was in the past," he says. The murder of Dutch filmmaker Theo van Gogh, he believes, served as a much-delayed wakeup call for most German judges and politicians.
In the autumn of 2004 Mohamed Bouyeri, the son of Moroccan immigrants who was born in Amsterdam and attended school there, slit van Gogh's throat as if he were slaughtering an animal on an Amsterdam street. He felt that van Gogh's film "Submission," about the oppression of women in Islam, was offensive to him and his religion. Van Gogh had shot the film together with Ayaan Hirsi Ali, a Somali-born Dutch who is one of the most prominent critics of Islam. The murder set the Netherlands into a deep state of shock. Suddenly the country was faced with the wreckage of its much-touted tolerance. Before long mosques and Koran schools were going up in flames, followed by retaliatory acts against churches.
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