Neither the United Nations and its related organisations, nor the Council of Europe, nor any Western government (except in Scandinavia and South Africa) have seriously addressed the problem of male circumcision. So long as these institutions remain quiet we cannot expect bodies such as the Organisation of African Unity or the governments of African countries where circumcision remains common to take action. Some have tried to justify the practice by reference to religious or cultural rights, but such a justification also applies to female circumcision, which has been generally rejected as morally offensive and physically harmful. It is nonetheless true that both practices violate individual rights, notably the right to physical integrity and life, the right not to be subjected to cruel or inhuman treatment or torture, the right to modesty, and the obligation to respect the dead.
The United Nations (UN) and its specialized organizations have always established a clear distinction between female circumcision, which they condemn, and male circumcision, which they are silent about, without ever making a scientific survey justifying the distinction. A distinction has already been made just at the semantic level. That is, these organizations used to use the term female circumcision, but changed to female genital mutilation in 1990, keeping the term circumcision for only male circumcision. Male circumcision has never been qualified in international documents as a mutilation.
During the UN seminar in Ouagadougou (Burkina Faso) in 1991, participants asked for a way to dissociate, in the minds of people, male circumcision from female excision. Three reasons were invoked against female circumcision: it is based on superstitions, it is not mentioned in the Bible or the Koran, and it is harmful to women's health. As for male circumcision, it was assumed to have a hygienic value.
A policy paper on female circumcision published by the World Health Organisation in 1998 attempted to justify distinguishing it from male circumcision be reference to the greater physical harm, though even that admitted that as rites they had much in common:
Female circumcision is no different from male circumcision, as both are cutting rituals performed on a child with no demonstrated positive impact on health. One difference between the two practices is that male circumcision is a clear requirement of some religions while female circumcision is not. The most important difference, however, is that even the most minimal form of female circumcision can affect a girl's normal sexual function. Evidence in the medical literature on the effect of circumcision on male circumcision is not well established.
Source: Nahid Toubia and S. Izett, Female Genital Mutilation: An Overview (Geneva: WHO, 1998), 3
If it is true that there is no research on the effect of circumcision on male sexual function, there is obviously no basis for the WHO's and the UN's assumption that it is so much less harmful and immoral than any form of female circumcision that no action should be taken even to investigate it, let alone restrict or regulate it.
In her last report of 2000, Mrs. Halimah Al-Warzazi, special rapporteur of the UN on traditional practices, indicated that she had received a few letters condemning male circumcision, but insisted that her mandate was limited to female circumcision. She pretended that the harmful effects of male circumcision cannot in any way be compared or equated with the violence, danger, and risk faced by girl children and women. She also insisted that male circumcision may be related to a lower risk of HIV transmission from women to men.
Thus, it can be concluded that the religious bases of male circumcision, the trivialization of its health implications, or even its beneficial effect are the reasons the UN uses to justify not leading a campaign against routine male circumcision. We can also say that female circumcision has a religious basis in the eyes of those who perform it, including even animists. On the other hand, the UN and its organizations have never made a study on the harmful effects of male circumcision. Let's also recall that some forms of male circumcision are more harmful than some forms of female circumcision.
The true reason behind the UN's silence is political. I asked Dr. Leila Mehra from the World Health Organisation:"Why the WHO is concerned only with female circumcision and doesn't consider male circumcision?" She responded in a meeting held in her Office in Geneva on January 12, 1992: "Male circumcision is mentioned in the Bible. Do you want to create problems for us with the Jews?" The same day, I met Mrs. Berhane Ras-Work, president of the Inter-African committee in her office in Geneva. Strangely enough, she gave me the same answer, illustrating that the two of them undoubtedly consulted each other before meeting with me.
If we look in the documents of the Council of Europe, we notice they make no mention of male circumcision. This topic has never been discussed within the Council. A letter of the European Court (June 22, 1999) reads: "The Council of Europe [addresses] problems raised inside by the various institutions that work there. If a particular problem was not taken in consideration, it is probably because it has not yet been denounced in adequate manner". Another letter of the European Parliament of July 12, 1999, also confirmed that male circumcision has not been treated by this Parliament.
The condemnation of female circumcision and the silence facing male circumcision, without a valid scientific justification to distinguish the two translate into:
The international and national legislatures, as well as the NGOs, that adopt the same position, violate a fundamental principle of human rights: the principle of non-discrimination. This principle is mentioned practically in all international documents and Western and African constitutions. We mention here some articles:
The Charter of the United Nations
Art. 1: The purposes of the United Nations are [...] (3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
Art. 55: [...] the United Nations shall promote: [...] (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
The Universal Declaration of Human Rights (1948)
Art. 2, par. 1: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Art. 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination.
The Convention on the Rights of the Child (1989)
Article 2, par. 1: Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
The Oath of Geneva of the World Medical Association (WMA)
I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, or social standing to intervene between my duty and my patient.
The Declaration on the Rights of the Patient of the WMA
To avoid transforming the principle of non-discrimination in a propaganda slogan empty of any meaning, this principle must find application in decisions of the institutions that preach it. If these institutions violate it, their decisions become invalid even though these decisions have been taken in unanimity. To validate these decisions, it is necessary either to suppress the principle of non-discrimination of their laws, or to give a valid justification for the discrimination they practice.
There is no doubt that those who perform male and female circumcision consider this practice an external demonstration of their religion and culture. These two components very often are mixed: for the religious Jew, circumcision is the achievement of a divine order; for the atheistic Jew, it is the cultural mark attaching him to his history. The religious and cultural norms are imposed on families and then individuals within the community. Their violation implies sanctions that expose the contravening persons to ostracism: interdiction to participate in the religious or social feasts, marriage, and burial in community cemeteries. The respect for these religious and cultural interdictions reinforces the social cohesion.
Because of the importance of the religious and cultural norms, the legislature has tried to recognize a community's right to live according to its religious norms and to practice its cultural norms. This was the case in the Roman Empire in its dealing with the Jews and other communities. It is also true today, this right being mentioned in many international and national documents, as indicated in the following documents.
The Universal Declaration of Human Rights (1948)
Art. 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Art. 27, par. 1: Everyone has the right freely to participate in the cultural life of the community.
International Covenant on Economic, Social & Cultural Rights (1966)
Art. 1, par. 1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
International Covenant on Civil and Political Rights (1966)
Art. 18: (1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
(2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
(4) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Convention on the Rights of the Child
Art. 8: (1) States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
(2) Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.
Art. 14: (1) States Parties shall respect the right of the child to freedom of thought, conscience and religion.
(2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
Art. 29, par. 1: States Parties agree that the education of the child shall be directed to: (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living; the country from which he or she may originate, and for civilizations different from his or her own.
Art. 30 - In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.
The right to perform circumcision as a religious or cultural demonstration is invoked by proponents of male and female circumcision. To this point, Professor Freeman of the London Law School has commented: "To deny a Jewish or Muslim child a circumcision is to undermine that child's right to cultural heritage and identity". Relying on Article 1, par. 1 of the Covenant on Economic Rights and the Covenant on Civil Rights, he adds: "It can be maintained that cultural identity, a sense of belonging to a religious and cultural group, is a fundamental human right."
But he makes the following reservation: "This right does not mean that every religious practice can be tolerated in the name of multiculturalism. There is a balancing exercise to be undertaken to determine whether a particular procedure or treatment is in a child's best interests. The relative harms and benefits of ritual circumcision are such that a parent's decision to circumcise in the name of religion should not be questioned."
Source: M. Freeman, A child's right to circumcision, BJU International 83 (Supp. 1), January 1999
From this quotation, it's clear Professor Freeman refers to female circumcision. But, in fact, proponents of this practice ask also for the right to perform female circumcision in the name of their culture and their religion, as much as the Jews do with male circumcision. As mentioned previously, Jomo Kenyatta doesn't hesitate to compare clitoridectomy in his tribe to male circumcision in the Jewish community:
Clitoridectomy, like Jewish circumcision, is a mere bodily mutilation which, however, is regarded as the conditio sine qua non of the whole teaching of tribal law, religion, and morality. The initiation of both sexes is the most important custom among the Kikuyu. It is looked upon as a deciding factor in giving a boy or girl the status of manhood or womanhood in the Kikuyu community.
Source: Jomo Kenyatta, Facing Mount Kenya: The Traditional Life of the Gikuyu (London 1985), 133
Africans ask not only to exercise this right in their respective countries, but also in Western countries where they immigrate. Reacting to the French trial against Malians in February 1999, the Republican Independent Daily of Mali, condemns what it calls "the racist and europeocentrist propaganda" and demands that one has "a little modesty, tolerance, respect of others or democratic attitude". It condemns the "Western campaign against the excision with pressures of all kinds, including political and economic pressures, which aims to detach slowly but surely the African young generation of its cultural values of origin". It sustains that "this practice didn't introduce blemish and problem of health or population which make the population practicing it inferior to others".
On February 8, 1999, the President of the ADUM association (Afrique - Debout - Unie en Marche), in Paris, sent to the Paris court a motion of support of Hawa Guereou, the female Malian circumciser condemned in this trial. He wrote:
We have the honor to submit to your High kindliness this clarification concerning the judgment of our mothers and sisters for the fact of excision on the French territory. The excision of girls, for us, is justified on the double level of the religion and customs. On the religious level: It exists since more than one century and was instituted by the Prophet Abraham. According to the Muslim religion, it is a measure of hygiene and holiness.
As regards to customs the letter continued:
The excision is not only a hygienic and cleanliness measure, but also a gynecological measure (it facilitates the childbirth). For us, it is normal to excise our girls. This is why we wish, if possible, to meet you to further illuminate the justice so that it is rendered in the best possible conditions, because we don't doubt that France is a State of rights and liberties.
This is the position of proponents of male and female circumcision. The international and national legislatures don╒t share this position. A clear distinction is made between male circumcision, which remains tolerated, and female circumcision, which is forbidden. As for female circumcision, the majority of the participants in the seminar on traditional practices held in Ouagadougou in 1991, a seminar organized by the UN Commission on Human Rights, stated: "The explanations drawn of the cosmogony and those based on the religion must be assimilated to superstition and must be denounced as such. Neither the Bible, nor the Koran does prescribe to women to be excised". Thus, one depreciates the religious concepts not expressed in the Bible or in the Koran, concepts considered superstitions. We refer the reader to the position of the CE in this respect.
One finds this distinction between male and female circumcision in legislation and positions of Western medical organizations. In these countries, male circumcision continues to be tolerated and is considered a religious and cultural practice, while female circumcision is rejected even though it's performed by people as part of their culture and religion. These countries don't allow culture and religion to be invoked as a justification for female circumcision, but they do for male circumcision. We provide the example of Switzerland and the United States.
There is no law in Switzerland forbidding male circumcision. With regard to female circumcision, the Swiss Academy of Medical Sciences considered in its position of August 24, 1983, that this custom is "in opposition to our ethical principles "cruel and degrading". It added: "The guilty parties and their accomplices, doctors and auxiliary nursing staff, are violating in the most serious way, the moral principles applicable to the exercise of their duties".
On 1 March 1993, the Federal council aligned itself with the position of the Central Committee, explaining "in Switzerland and in the remainder of Europe, the excision of the clitoris is considered as inhuman treatment according to article 3 of the European Convention of human rights".
There is no law in the United States forbidding male circumcision. Regarding female circumcision, American federal law of 1995 forbids it, stating: "No account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."
The American Academy of Pediatrics, in its Position Statement on Circumcision of March 1999, stated that although male circumcision "is not essential to the child's current well-being", it is "legitimate for parents to take into account cultural, religious, and ethnic traditions, in addition to the medical factors, when making this decision".
The position of the Academy concerning female circumcision is completely different. In its statement of July 1998, this Academy recognizes that:
Despite all these arguments of cultural and religious order, the AAP rejects all forms of female circumcision, from the lightest to the most severe. According to the Academy, "The physical burdens and potential psychological harms associated with FGM violate the principle of non-maleficence, a commitment to avoid doing harm, and disrupt the accepted norms inherent in the patient-physician relationship, such as trust and the promotion of good health. More recently, FGM has been characterized as a practice that violates the right of infants and children to good health and well-being, part of a universal standard of basic human rights". It recommends that its members "educate and counsel the family about the health effects of FGM. Parents should be reminded that performing FGM is illegal and constitutes child abuse in the United States".
This opposition to female circumcision is, in fact, a dismissal of the customs of other cultures, no more and no less. If we take into consideration the Academy's medical arguments, it would be necessary to reject male circumcision as well as female circumcision. And if one adopts the criterion of gravity, it would be necessary to permit the 1st degree of female circumcision (ablation of the hood of the clitoris) that corresponds to the 1st degree of male circumcision, and to forbid the other forms of these two practices. In this case, it would be necessary to also forbid Jewish circumcision that is the 2nd degree: ablation of the foreskin (milah) and ablation of the inner lining of the foreskin (periah). Alone, the ablation of the foreskin should be allowed. All other solutions reflect a cultural imperialism and are unjustified discrimination.
Certainly, one can invoke the fact that the custom of female circumcision is contested by some people belonging to cultural and religious groups that perform it. But we find a similar contention within the Jewish and the Muslim communities concerning male circumcision. We limit ourselves here to three paragraphs of an article by Jenny Goodman, a Jewish British psychiatrist:
In Judaism, and in Islam, the human being is considered to be made in the image of God, and God is conceptualized as perfect. So one could argue that interfering with god's perfect creation is a form of blasphemy. In Judaism there is a law of Shmirat Ha Guf, the guardian or protection of the body. Body-piercing, tattooing and amputation are all forbidden for the reason. Further, there is the Talmudic concept of Tsa'ar ba'alei chayyim, compassion for all living creatures. If compassion in all its fullness were applied to 8-day-old babies, circumcision would become impossible.
The Talmud goes on to say that: "One should be more particular about matters concerning life and health than about ritual observance". It insists, for example, that even the laws of the sabbath must be broken to give medical treatment or comfort to a sick person or a postpartum woman. This is despite the fact that keeping the sabbath is one of the Ten Commandments; circumcision, significantly, is not.
Jewish law is an evolving process that has always taken into account new developments in science and understanding, and attempted to integrate them. Given what is known about the life-threatening complications of neonatal circumcision, there is an argument from within Judaism to adapt Jewish law, so that the circumcision of helpless, non-consenting babies becomes forbidden, not demanded.
Source: Jenny Goodman, A Jewish perspective on circumcision, in George C. Denniston, Frederick Hodges and Marilyn Milos (eds), Male and female circumcision: Medical, legal and ethical considerations in pediatric practice (New York, 1999), 24
Along the same lines, a British lawyer states that male circumcision is not bound to a determined date with the Muslims, and it is not a condition of adherence to the Jewish community. Therefore, it is possible to delay circumcision until the age of majority to give the child the right to decide for himself if he wants to be circumcised or not. By waiting, one doesn't violate religious norms. Certainly, a father may feel saddened or guilty from a religious point of view if he lets his child go uncircumcised, but this is not a sufficient reason to impose a circumcision on a child or establish that the operation is in the child's interest.
Source: Christopher Price, Male non-therapeutic circumcision: The legal and ethical issues, in George C. Denniston, Frederick Hodges and Marilyn Milos (eds), Male and female circumcision: Medical, legal and ethical considerations in pediatric practice (New York, 1999)
Circumcision is certainly a religious and cultural practice that lives within communities. But it is also a practice that is imposed upon an individual who is generally a minor without medical reason. While communities have a right to perform religious and cultural acts, they must respect individual rights, mainly the right to adhere to religious beliefs and cultural customs, the right to physical integrity and life, the right to modesty, and the right to respect the dead.
The question then arises what has priority: community or individual rights?
A basic international human rights rule is that individual rights are considered fundamental and have priority over collective rights. In the name of tolerance toward religion or culture, a community cannot ask the legislature to close its eyes to violations of fundamental individual rights. This rule has clearly been expressed in the UN Declaration of Principles on Tolerance proclaimed and signed on November 16, 1995, by member states of the UNESCO. Article 1, par. 1 defines tolerance as follows:
Tolerance is respect, acceptance and appreciation of the rich diversity of our world's cultures, our forms of expression and ways of being human. It is fostered by knowledge, openness, communication and freedom of thought, conscience and belief. Tolerance is harmony in difference. It is not only a moral duty, it is also a political and legal requirement. Tolerance, the virtue that makes peace possible, contributes to the replacement of the culture of war by a culture of peace.
But this article adds in par. 2: "Tolerance is not concession, condescension or indulgence. Tolerance is, above all, an active attitude prompted by recognition of the universal human rights and fundamental freedoms of others. In no circumstance can it be used to justify infringements of these fundamental values. Tolerance is to be exercised by individuals, groups and States."
The par. 3 of the article 18 of the Covenant on Civil and Political Rights states: "Freedom to manifest one╒s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."
This limitation is repeated in par. 3 of article 14 of the Convention on the Rights of the Child.
Article 4 of the Declaration on the Elimination of Violence against Women, adopted December 20, 1993, by the General Assembly of the UN reads: "States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination". Article 2 considers female circumcision an instance of violence against women.
In a case involving a conflict between the religious liberty of parents and child's right to physical well-being, the U.S. Supreme Court has ruled: "Parents may be free to become martyrs themselves. But it does not follow they are free "to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves". Commenting this decision, an opponent to male circumcision writes: "The religious beliefs of the parents, over which the child has no control, cannot be used to excuse harming the child's temporal interests nor can they entitle the parent to control the child for the parent's benefit".
Source: Van Howe RS, Svoboda JS, Dwyer JG, Price CP. Involuntary Circumcision: the legal issues. BJU Int 1999; 83, Suppl 1:63-73
It is appropriate at this point to recall the Geneva oath of the WMA: "I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, or social standing to intervene between my duty and my patient." This quotation means that the physician must not be influenced by religious or cultural reasons in his medical intervention.
Thus, in a case involving a conflict between the right of the community or parents and the fundamental rights of the individual, it is the latter that has priority. Therefore, religious norms, whether mentioned in the Bible or the Koran or embodied in superstitions or animist beliefs, cannot be invoked to deprive an individual of his fundamental rights. It would take entirely too much space to list the Biblical and Koranic norms that different societies consider obsolete and contrary to human rights. If each community were allowed to apply all its religious or cultural norms to the detriment of individual fundamental rights, humanity would sink back into barbarism.
This principle is clear, but its application to circumcision is less clear. Proponents of male and female circumcision refuse to apply it and feel communal religious norms have priority over individual rights. As for national and international legislatures and NGOs opposed to only female circumcision, they apply this principle only to female circumcision, giving religious and cultural communities the right to circumcise their boys and, thus, depriving them of their individual rights.
It is important to note that circumcised people, men or women, are marked for life on their flesh. They don't even have the right as an adult to change their religion and get rid of the religious mark their parents imposed on them. Circumcision is, therefore, a breach of current and future liberty. The child certainly belongs to a Muslim and Jewish family, but international documents grant the child the right after a certain age to choose a religion different from his parents'. Thus, a child should also have the right to choose whether to have a circumcision, a religious mark, or not.
It is not astonishing that Muslim and Jewish communities perform circumcisions. Both of these communities remain even today attached to the old concept of religious liberty: an obligation to enter, and no entitlement to leave. Those that abandon their religion are considered apostates, an offence punished even today in certain Muslim countries by death penalty and in Israel and in Muslim countries of the deprivation of a certain number of civil rights. The imposition of circumcision is the expression of this concept, aiming to force people to remain in the community by marking them physically as one marks livestock. Rabbis have aggravated the operation of male circumcision to make it difficult or even impossible for restoration of the foreskin. This is the reason these two communities consider any critique against circumcision as an attack against the community. This position doesn't differ from the position of U.S. slave masters who considered abolitionist campaigns as an infringement on their property and even their religious convictions. Let's add here that the interdiction of female circumcision and the allowance of male circumcision are contrary to the principle of sexual non-discrimination concerning religious liberty.
It is interesting here to briefly discuss the intellectual progressive position of Margaret Somerville, Professor of Law at McGill University, Montreal. She explains that she began her campaign attacking only female circumcision before she discovered male circumcision was also unjustified at the medical, ethical, and legal level. Despite her discovery, she kept silent for seven years before overtly expressing her opinion: "The main reason that I have taken so long to speak publicly against routine male circumcision was my great fear of, in some way, supporting anti-Semitism or anti-Muslim feelings".
Somerville explains that Western society generally gives pre-eminence to the rights of individuals, not only at the expense of claims of the community, but sometimes without any thought as to what needs to be done if a community is to be maintained or even to survive. In the context of a discussion of infant male circumcision carried out for religious reasons, we need to recognize people's rights to belong to a community of faith and belief, and to bring their children into this community with them. We must, therefore, take care to not intentionally harm them through attacking their beliefs or practices, especially a religion to which we do not belong, or at least not to do so without overwhelming justification for our actions.
Somerville is in favour of some sort of limitation or prohibition of male and female circumcision, but she suggests that it would be necessary to make an exception in favour of religious circumcision if a person believes that it is a central tenet of his religion and a fundamental, an absolute religious obligation. But in this case, it is necessary to reduce the pain to a minimum. So it would not be permitted to perform the religious circumcision without anaesthesia. On the other hand, the least harmful and invasive form of circumcision that would fulfil religious requirements must be the practice adopted. For instance, historical research shows that for the first 2,000 years of Jewish history, a much less radical circumcision procedure was used than that employed today. Finally, the fully informed consent of both parents must be obtained.
Somerville asks whether it is possible to delay the operation until the boy is competent to give personal informed consent. This issue is relevant in the Muslim faith where some male circumcision is carried out at an older age. But Somerville indicates that the law does not allow people below the age of majority to consent to non-therapeutic interventions. Evidently, Somerville does not plead for the delay if the child is from Jewish parents, because Jewish norms impose circumcision on the eighth day.
Source: Margaret Somerville, Respect in the context of infant male circumcision: Can ethics and law provide insights?, in George C. Denniston, Frederick Hodges and Marilyn Milos (eds), Male and female circumcision: Medical, legal and ethical considerations in pediatric practice (New York, 1999)
Somerville presented her ideas during the Fifth International Symposium on Genital Integrity that took place in Oxford in 1998. When she finished her presentation, a Jewish physician from Israel rushed toward her full of anger and asked: "Of what right do you allow my parents to cut my genitalia? My genitalia belong exclusively to me and my parents don't have any right to dispose of them in the name of religion". Many other participants expressed the same discontent about her mitigated position that tries to appease the Jewish and Muslim community. They feel that if one begins to open the door to allowing male circumcision by respecting the feelings of these two communities, one should then accept female circumcision for this same reason. And, they ask, where will this all end: should we also allow the law of retaliation (eye for eye and a tooth for tooth), the amputation of a thief's hand, the stoning of adulterers, and the death penalty for apostasy because these norms are traditional religious norms? In sum, should many other obsolete religious norms be reintroduced?
If one objects to circumcision in the name of the individual religious liberty, we could also forbid the baptism of children. Baptism differs from circumcision in many ways, but primarily because it doesn't leave a physical mark; moreover, we all wash our children daily with water. But some people agree with this argument. Indeed, a growing number of Christians are no longer baptizing their children and, thus, the children are making their own decisions when they are adult.
There is a similarity between circumcision and baptism by immersion. At a baptism I attended of a three-year-old son of a Greek Orthodox Palestinian family in Switzerland, I noted the child was publicly naked and then handed over to a priest who dipped him three times in baptismal waters. The child screamed and shouted with all his strength, while his parents and friends showed their joy by singing Arabic songs. The child's mother told me that her son had nightmares during the month following the baptism. There can be no doubt that this type of baptism is contrary to the rules of compassion. Strangely enough, society would be outraged if somebody treated a cat or a dog in his way
The nearest accepted social custom to circumcision is probably tattooing as a religious sign. Copts tattoo their children, boys and girls, by a cross sign. There is no doubt that this practice on minors is contrary to individual religious liberty. We will see later that the Bible and the narratives of Muhammad forbid tattooing. And even though positive laws don't yet regulate this practice, those who tattoo generally refuse to proceed on minors without the authorization of parents for fear of judicial pursuit.
Some argue that because it's okay for parents to impose education on their children that it's also okay to impose circumcision on them. There is a great difference, however, between education that prepares a child to be an active member of society and circumcision, which does not. If one didn't impose education on a child, it would lead to an enormous collective danger. To delay a circumcision until a child reaches an adult age constitutes no damage to society and the act doesn't prepare a circumcised child to be an active member of society. On the contrary, performing a circumcision at a young age exposes the child to physical and psychological dangers.
Male or female circumcision is an infringement of physical integrity that reduces the natural functions and drives and leads to physical, psychic, and sexual complications and sometimes death. For this reason, it is a violation of the rights to physical integrity and life. These two rights are among the most important human rights. Laws of all countries of the world, those of the West or the Third-world, mention them, impose penal sanctions for their violations, and provide civil reparation against those who violate them.
The international legislature has explicitly placed the right to life at the forefront of the rights it guarantees. We give here some examples.
The Universal Declaration of Human Rights
Art. 3: Everyone has the right to life, liberty and security of person.
The Covenant on Civil and Political Rights
Art. 6, par. 1: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The Convention on the Rights of the Child
Art. 6 (1): States Parties recognize that every child has the inherent right to life. (2) States Parties shall ensure to the maximum extent possible the survival and development of the child.
The European Convention of Human Rights
Art. 2, par. 1: Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Strangely, none of these four documents mentions the right to physical integrity. The only two international documents that mention this right are the American Convention of Human Rights of 1969 and the African Charter of Human Rights of 1981.
The American Convention on Human Rights
Art. 4, par. 1: Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
Art. 5, par. 1: Every person has the right to have his physical, mental, and moral integrity respected.
The African Charter of Human Rights
Art. 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
It's interesting to ponder why the UN and Europe did not include the right to physical integrity in its key documents. Vasak writes: It is by the interdiction of torture, cruel, inhuman or degrading treatments and of the medical or scientific experimentation without the free consent of the interested person that appears the worry of the international Community to defend and to preserve the physical and moral integrity of the person.
This explanation is not very satisfactory because national constitutions themselves expressly mention the right to physical integrity. By returning to the travaux preparatoires of Article 3 of the Universal declaration, we notice that this right was mentioned in different projects, but was suppressed in final versions. It appears that the right to physical integrity was assumed to be included in the right to security mentioned in Article 3. But as Verdoodt says, article 3 is quite vague. He explains that only some countries participating in the redaction "gave an interpretation that includes the right to physical integrity in the legal notion of security of person", adding that this article doesn't include "any explicit condemnation against the lack of protection of the state against the criminal tentatives". According to Verdoodt, it would be necessary "to refer to the article 5, that forbids the cruel, inhuman or degrading treatments, to include the right to physical integrity in the Declaration".
Source: Albert Verdoodt, Naissance et signification de la Declaration universelle des droits de l'homme (Louvain 1964), 165
The travaux preparatoires of the European convention of human rights don't explain why its redactors excluded the right to physical integrity. In response to our question to the Court of Human Rights in Strasbourg as to why, Wolfgang Peukert, Chief of the unit of Jurisprudence Research and Documentation, answered (June 22, 1999), that "the physical integrity is protected by articles 3 and 8 of the European convention of human rights". These two articles state:
Art. 3: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Art. 8, par. 1: Everyone has the right to respect for his private and family life, his home and his correspondence.
It's not clear how one can deduce from these two articles the right to physical integrity. The next question is whether the implicit goal of the drafters of these documents was to avoid male circumcision. To answer this question, we need to discuss the historical setting of the Universal declaration and the European convention, both of which are post-WWII documents. By writing these two documents, the drafters tried to take solid resolutions to address the horrors of World War II. They particularly wanted to ensure that the horrors of concentration camps for Jews and other undesired groups would never be repeated. By not mentioning the right to physical integrity, it's possible the drafters wanted to avoid hurting the Jewish community that practices male circumcision. Indeed, the primary drafter of the Universal declaration was Professor Rene Cassin, of the Jewish religion. This hypothesis should one day be confirmed or invalidated by future researchers, but it cannot be completely discarded today. It's important to note that only a few people are aware of the absence of the right to physical integrity in the UN documents and the European convention; in fact, even law professors consistently have expressed their astonishment at this mystery.
Even though the right to physical integrity is not expressly mentioned in the UN documents and the European convention, it doesn't mean the right can't be found implicitly within other rights, including articles 3 and 5 of the Universal declaration and article 3 of the European Convention on Human Rights and Bioethics. In addition, the following could be added.
The Convention on the Rights of the Child
Art. 24 (1): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health.
(3) States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
Art. 36: States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child╒s welfare.
The International Code of Medical Ethics of the WMA
A physician shall in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity.
A physician shall act only in the patient's interest when providing medical care which might have the effect of weakening the physical and mental condition of the patient.
Geneva Convention on treatment of prisoners of war
Let's signal also that the four Geneva Conventions which set the standards in international law for humanitarian treatment of the victims of war forbid infringements on physical integrity. Regarding mutilations, Article 3, par. 1 states:
"the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
This rule applies "without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."
It is true that the Geneva Convention applies specifically to the treatment of prisoners of war and to civilians caught in war zones, but it is reasonable to suppose that the framers of the convention were trying to give prisoners the same rights as were already enjoyed by the average citizen. If such a rule must be applied in war, a fortiori it must be applied in peace, and if applicable to prisoners it must certainly be applied to free citizens.
Degrading treatment and torture are forbidden by numerous international documents.
The Universal Declaration on Human Rights
Art. 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The Covenant on Civil and Political Rights
Art. 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
The Convention on the Rights of the Child
Article 37: States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
In addition to these documents, others that forbid degrading treatment and torture, include "Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment", adopted by the General assembly of the UN in 1982.
The Declaration of Tokyo of the WMA (1975) confirms these principles:
In what way are these principles applicable to female and male circumcision? Proponents of female circumcision don't agree that this practice qualifies as degrading treatment or torture. Even opponents of this practice are reluctant to consider it such even though they don't minimize the pain that it can generate. We have already mentioned the case of the Somalian Waris Dirie who condemns female circumcision, but says she doesn't blame her parents because they did what they thought was important for their daughter.
Dorkenoo writes: "Female genital mutilation does not fit into a neat traditional category of torture, e.g. dictatorial government torturing political prisoners. Female genital mutilation is gender-based violence which happens in the home, is condoned by the family and the community at large and over a period of time has been accepted as culture. As a human rights issue it falls into the category of citizen upon citizen abuse. It is not governments who are forcing girls to be mutilated."
Source: Efua Dorkenoo, Cutting the Rose: Female Genital Mutilation: The practice and its prevention (London 1994), 70
International human rights bodies obviously do not share this point of view. The Commission of Human Rights in Resolution 49 of 1996 stated that female circumcision was violence against the women and asked governments "To enact and enforce legislation protecting girls from all forms of violence, including female infanticide and prenatal sex selection, genital mutilation, incest, sexual abuse, sexual exploitation, child prostitution and child pornography."
The Sub-committee for the Prevention of the Discrimination and the Protection of Minorities refers in Resolution 8 of 1997 to article 5 of the Universal Declaration of Human Rights and Article 7 of the Covenant on Civil and Political Rights, both of which address torture or cruel, inhuman, or degrading treatment, and called upon member states to take the necessary measures to eliminate female circumcision. This UN position is confirmed in many documents of the Council of Europe.
It should also be noted that the president of the Inter-African Committee considers female circumcision as a "true operation of torture with disastrous physical and moral consequences and aftermaths whose victims often endure during all the remaining of their life".
Nor do proponents of male circumcision agree that male circumcision qualifies as degrading treatment or torture. They deny or minimize a child's pain and assert that circumcision is an act of love, performed in the child's interest. Professor Freeman, in fact, says that it is not circumcision, but the Jewish and Muslim parent's refusal to circumcise their children that constitutes an abuse. He adds: "Far from ritual male circumcision constituting abuse or a prejudicial traditional practice, or a threat to a child's bodily integrity, it is argued here that male Jewish and Muslim babies have the right to be circumcised". He says the majority of Jewish and Muslim adults appreciate what others put them through. "To them, cultural and religious identity, the sense of belonging to a group, is of greater significance than minor invasive treatment administrated when they were unaware of it". He adds: "To deny a Jewish or Muslim child a circumcision removes from him the ability to participate in the religious life of his community and as such undermines his freedom of religion".
The silence of the international legislature regarding male circumcision seems to indicate it doesn't consider the practice a degrading treatment or torture. The American legislature forbids abuse inflicted on children for religious reasons, including female circumcision but excluding male circumcision.
Opponents of male circumcision do not share their opinion. Ashley Montagu writes: "In recent years, we have suddenly discovered that the abuse of children is rather more frequent than was generally believed. Today, now that child abuse has come to be recognized as a widespread psychopathology in America, it may be easier for people to perceive circumcision as a form of child abuse."
Source: Ashley Montagu, Mutilated humanity (Nocirc: San Francisco, 1991)
J Steven Svoboda, the president of Attorneys for the Rights of Children, writes: "No objective observer who has witnessed a circumcision can seriously dispute that the procedure inflicts severe pain or suffering on the child. Circumcision does constitutes torture. Article 3 of the Declaration against torture prohibits any state from permitting or tolerating torture or other cruel, inhuman and degrading treatment or punishment. The United States, by failing to take action against circumcision, as well as by subsidizing and performing the procedure, is also violating this article."
Source: J. Steven Svoboda, Routine infant male circumcision: Examining the human rights and constitutional issues, in George C. Denniston and Marilyn Milos (eds), Sexual mutilations: A human tragedy (New York, 1997)
The chairwoman of the Amnesty International-Bermudas section also says male circumcision is torture. She invokes here the UN reports relative to crimes committed during the war in Yugoslavia. These reports describe as torture various forms of sexual violence inflicted on prisoners, including rape, castration, and male circumcision. The Fourth report on War Crimes in the former Yugoslavia 1992 (Part II) reports the following under the headline "Torture of prisoners":
A US surgeon from California spent 2 weeks in Bosnia-Herzegovina (including time at Kosevo hospital in Sarajevo) in late August and early September performing remedial urological surgery. The doctor reportedly found that Muslim and Mujahedin irregular troops - some from Afghanistan and Saudi Arabia - had routinely performed crude, disfiguring, non-medical circumcisions on Bosnian Serb soldiers, and he treated one 18-year-old Bosnian Serb soldier who was so brutally circumcised that eventually the entire organ required amputation.
On October 6, 1992, the UN Security council requested the Secretary General to establish a Commission of Experts to examine and report on violations of international humanitarian law committed in the territory of former Yugoslavia. The Commission of experts' final report (S/1994/674) concluded that universal jurisdiction existed for "crimes against humanity", which are considered "elementary dictates of humanity to be recognized under all circumstances"; applicable "to all contexts"; and "no longer dependent on their linkage to crimes against peace or war crimes". These "crimes against humanity", the report established, include "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment".
The report added that "rape and other sexual assaults" constitute "torture or inhuman treatment" which wilfully cause "great suffering or serious injury to body or health". In part IV, the report details the nature of sexual assault or abuse of men as follows:
There have also been instances of sexual abuse of men as well as castration and mutilation of male sexual organs. Men are also subjected to sexual assault. They are forced to rape women and to perform sex acts on guards or each other. They have also been subjected to castration, circumcision or other sexual mutilation.
Laws of all countries of the world punish infringements on modesty. Respect for a child's modesty is demanded by the Convention on the Rights of the Child:
Article 16, par. 1: No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
Art. 34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.
The respect for modesty is affirmed in medical ethical norms. The Oath of Hippocrates (d. 377 B.C.) states: "Whatever house I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves."
The WMA Declaration on the Rights of the Patient states: "The patient's dignity and right to privacy shall be respected at all times in medical care and teaching, as shall his/her culture and values."
The Charter for Children in Hospital (1993) states: "Children shall be treated with tact and understanding and their privacy shall be respected at all times."
In order to carry out a circumcision, the circumciser undresses the child, manipulates his genitalia, and cuts them. In a Jewish circumcision, the traditional religious rule (still observed by ultra-orthodox Jews) provides for the circumciser to put the child's penis in his mouth following the cutting. There can be no doubt that this behaviour is an infringement of the penal norms relative to modesty (and paedophilia) and is a frequent cause of disease transmission from circumciser to child, including tuberculosis, syphilis and herpes, sometimes leading to death.
Opponents to female circumcision in Egypt don't hesitate to use these norms to support their opposition to female circumcision. The vice-president of the Egyptian Cassation Court has written that the physician who touches a woman's breast commits an infringement of a woman's right to modesty, except in cases where a medical reason exists. The same rule applies if one touches a girl's genitalia. Professor Al-Saghir of the law faculty of Ain Shams writes:
It is not permitted to denude genitalia of others than for the medical reasons. With regard to female circumcision, it is not permitted to discover the genitalia than if the circumcision is an obligation. However, it is neither obligation nor sunnah. In the same way, it is not part of medical act since it doesn't heal an illness of the girl, female organs not being in themselves an illness. Therefore, the ablation of any part of a female sexual organ is comparable to an ablation of any other healthy organ such as a finger. The one that perform this operation, whether he is a physician, nurse or other, is guilty of the crime of reach to modesty.
To support his position, Al-Saghir mentions an unpublished Egyptian judgment of 1994 that qualified female circumcision in this way. Another unpublished judgment of 1995 did the same regarding a male circumcision performed by a male nurse on a seven-year-old child. Al-Saghir argues circumcision is an aggravated breach of modesty because it is performed on a minor by using the constraint. Even if the minor agrees to a circumcision, his consent can't be taken into consideration because his is a minor by law.
Muslim jurists are very sensitive to the argument of modesty in relation to male and female circumcision. They insist that a person of the same sex must perform the circumcision. So a woman should circumcise a girl or a woman, and a man should circumcise a boy or a man. If the person being circumcised is an adult man, Al-Nazawi (d. 1162) says he must let the circumciser see only the part to be circumcised and he must hide the rest of his body. The book Al-fatawi al-hindiyyah says that in this case, the man should circumcise himself so that he doesn't expose his genitalia to others. If he doesn't know how to perform the circumcision, he should buy a female slave who knows the profession. Al-Sawi (d. 1825) says the man doesn't have to have a circumcision in this case.
Respect for the human cadaver has been imposed on humanity since time immemorial. Whoever attacks a cadaver commits an act of profanation. To our knowledge, the international legislature doesn't expressly address human rights after death, unless we consider this right to be included within the articles that protect human dignity and forbid cruel, inhuman, and degrading treatment. Laws of all countries of the world carefully provide that the human cadaver and the place where it is buried should not be profaned. For example, article 262 par. 1 of the Swiss Penal Code provides: "Everyone who desecrates or publicly offends a human cadaver shall be punished with imprisonment or with a fine".
According to strict Jewish tradition, the fetuses of dead male children should be circumcised before being buried. Similarly, the same procedure may be performed on the Jews who died uncircumcised. Circumcision constitutes a burial condition in a Jewish cemetery. This last issue was the subject of an agitated debate in the Knesset, the Israeli Parliament. Circumcision of the dead is extolled by certain Muslim jurists.
There is no doubt that such a practice is a profanation of the dead. Certainly the refusal to bury a dead person in a cemetery because he is not circumcised must constitute religious discrimination. Even though such a repugnant act is not regulated by international or national legislation, it is undoubtedly the duty of intellectuals to denounce it publicly as contrary to good customs and morals.
Source: Extract from Chapter V, "Human rights", from Sami Aldeeb Abu-Sahlieh, Male and Female Circumcision among Jews, Christians and Muslims: Religious, Medical, Social and Legal Debate (Warren, Penn: Shangri-La Publications, 2001), 324-336. The text has been slightly edited for clarity and to bring some points up to date.
Sami Aldeeb's blog (in French)