Hege Storhaug, HRS
Muslimske voldgiftsmenn, også kalt skyggedommere og fredsdommere, opererer parallelt med det tyske rettsvesenet, også i kriminalsaker. Forbrytere unnslipper tyske fengsler ved at de betaler en pålagt kompensasjon til offeret, som pålegges ikke å vitne i en eventuell rettssak slik at forbryteren dømmes. Dette pågår i alle større tyske byer, sier forfatteren, journalisten og jusseksperten Joachim Wagner. Det utenomrettslige
I boken Judges Without Law: Islamic Parallel Justice Endangers Our Constitutional State, hevder Wagner at den tyske staten selv er medskyldig i at sharia får makt i Tyskland. Wagner har gått gjennom 16 kriminalsaker i det tyske rettssystemet der muslimer var involvert. I 90 prosent av tilfellene ble sakene trukket fra domstolen grunnet mangel på vitner eller de tiltalte ble frifunnet. Dette fordi ”fredsdommere” hadde ordnet opp utenfor retten. At domstolene aksepterer situasjonen, mener Wagner vitner om politisk korrekthet. Men det er verre enn som så. Wagner viser til en rekke saker der domstolene selv aksepterer sharia:
1. I Kessel ganske nylig aksepterte domstolen krav fra en andrekone om at hun skulle dele pensjonen md førstekona etter deres felles ektemanns død.
2. I en ankesak i Koblenz ga domstolen en andrekone til en iraker rett til opphold. Kvinnen hadde vært gift med mannen i fem år, og retten mente det var urimelig å sende henne alene tilbake til Irak.
3. I Køln påla domstolen en iransk mann å betale tilbake medgiften til hans fraskilte hustru, med referanse til sharia. Liknende tilfelle er registrert i domstolen i Düsseldorf, der en tyrkisk mann ble dømt til å betale tilbake medgiften til en tidligere svigerdatter.
4. Wagner refererer også til skilsmissesaken som vakte internasjonal oppmerksomhet i 2007, der en tysk dommer med henvisning til koranvers som tillater fysisk avstraffelse av hustruen, nektet å gi en marokkansk kvinne skilsmisse grunnet vold Hun måtte forvente vold da hun gifte seg med en muslim, var den oppsiktsvekkende logikken.
I en bredt anlagt kommentarartikkel i Spiegel tar Wagner for seg hvordan sharia praktiseres i Tyskland i dag, der det blant annet fremkommer at skyggedommere har ingen skrupler med å vie barn. Skyggedommerne blir nok et verktøy familier har til å tvinge barna til ektesengen.
For years, Islamic mediators have been stepping in to solve family disputes and marital problems among Muslims in Germany. A new book takes a closer look at how their reliance on elements of Sharia law, instead of German law, affects Muslim women.
Demir furniture store in the western German city of Recklinghausen is the go-to place for people in need of either inexpensive furniture or, for some Muslims, advice on how to handle a disobedient daughter.
In his 400-square-meter (4,300-square-foot) warehouse-like shop, Haj Nur Demir, a 61-year-old Lebanese man, sells items like used desks, washing machines and armchairs from estate sales. The furniture dealer is tall, slim, gray-haired and sports a mustache. He also exudes authority. It’s a good trait to have in his second profession.
Demir estimates that he has settled more than 2,000 conflicts in Muslim families in Germany and Lebanon since 1972. Sometimes Demir merely provides information on the phone, and at other times he practically has to throw himself between the parties to prevent them from coming to blows.
Demir’s typical clients are husbands whose wives have left them and fathers of couples who are having problems. They often complain about their wives and daughters, namely Muslim women who rebel against corporal punishment or want to free themselves from the confines of marriage, even if they have children.
First, Demir speaks with the fathers, and then with the couples. The ultimate goal, says Demir, is to keep the family together. He says that he tells the men they have to treat their wives better and to not use violence, and he explains to the women that as divorcees with children they will not be able to find a new husband in their community. At the end of Demir’s missions, the wife usually returns to her husband.
He has authority, but Demir has no legal training whatsoever. Men like him have established a parallel family justice system in Germany in recent years. Imams, arbitrators and so-called justices of the peace become active before German courts are even involved. They perform marriages and divorces, and they propose rules for child custody. They also try to convince women and girls who rebel against their families to return or stay.
An Imported Tradition
Immigrants from Turkey and Arab nations imported arbitration to Germany. It is based on a thousand-year-old Islamic legal tradition rooted in customs and the Koran. In cases of marital strife, for example, the Koran calls for «an arbitrator from his family and an arbitrator from her family.»
The Yazidi, Roma and Albanians have similar arbitration traditions. Sometimes there are months-long peace talks before the arbitrator makes a decision, which then has the effect of a court ruling. For example, a daughter who has fled to a woman’s shelter returns to her parents and is permitted to begin vocational training programs, while a pregnant daughter is required to marry and move in with her boyfriend’s family.
All of this is going largely unnoticed by the general public. Last week, German police made headlines when they conducted an operation against radical Islamists. Interior Minister Hans-Peter Friedrich, a member of the conservative Christian Social Union (CSU), said: «Salafists pursue the goal of overcoming the democratic constitutional state in favor of an order that, according to their standards, is ‘ordained by God.'» The Salafists want a theocracy in which Sharia is the rule of law.
People like arbitrator Demir are not aggressively fighting the constitutional state or the constitution. But is their parallel system of justice compatible with the German constitution? The Muslim shadow judges are mainly protecting the patriarchal structures of a culture whose proponents are not truly interested in becoming integrated in Germany. Most arbitrators tolerate restrictions of the basic rights of women, and they urge women to accept these constraints.
‘Two Legal Systems’
Arnold Mengelkoch, the official in charge of immigrant affairs in Berlin’s Neukölln district, is familiar with the «informal Islamic family justice system» in his neighborhood. He estimates that 10 to 15 percent of Muslims in the religiously conservative community use the system to resolve their conflicts.
«There are two legal systems,» says Sabine Scholz, a family law attorney in the northern city of Flensburg, «a German one and an Islamic one, which puts women at a disadvantage.»
For some Muslim immigrants, Islamic law is more important than German law. Mathias Rohe, an Islamic law expert in the Bavarian city of Erlangen, encountered cases in his field studies «in which Muslim parties performed marriages or divorces, for example, exclusively in accordance with traditional Islamic norms.»
Some Muslims mistrust government organizations, says Rohe, who sees himself as an intermediary between Islamic and German legal cultures. According to Rohe, some people are trying «to establish a religious parallel structure, because they do not want to submit to the institutions of a secular, non-Islamic state.»
As a result, imams and arbitrators in Berlin, the western state of North Rhine-Westphalia and the northern state of Schleswig-Holstein apply Sharia law on a daily basis, even though it is sometimes incompatible with the German constitution and German family law. In particular, Islamic law discriminates against women in the following ways:
They are not permitted to marry non-Muslims;
In an arbitration, family unity takes precedence over the woman’s right of self-determination, even in cases involving violence;
In a divorce, the man receives sole custody of the children;
Polygamy and marriages with minors are allowed; under German law, 16-year-old girls can only marry with the permission of a family court.
Sometimes, however, the Muslim judges are willing to stretch Sharia law. The Islamic law rejects forced marriages, which have their roots in old traditions. But clerics often have no qualms about marrying underage girls, even if it’s against their will.
Terres des Femmes, an organization devoted to protecting women, repeatedly sees 14- and 15-year-old girls, especially from Kurdish and Albanian backgrounds, who are supposed to be married by imams.
According to a current study by the Federal Ministry of Family Affairs, titled «Forced Marriage in Germany,» 53 percent of all those who were married or to be married by imams were younger than 18. Rosa Halide M., who runs a shelter for Muslim girls in Stuttgart, has «never witnessed an imam preventing a forced marriage.» According to a representative from Terres des Femmes, in the vast majority of cases «the imam is just another tool for the family to apply pressure on a girl to get married.»
Ferid Heider, 33, an Islamic theologian from Berlin, and the son of an Iraqi father and a German-Polish mother, is an exception. He says he emphasizes a «moderate Islam.» Sitting in a makeshift mosque in the district of Wedding, Heider says he wants to put an end to the tradition of forced marriages. Because such marriages «rarely have a future,» he says he tries to talk to the woman alone before the wedding, without her parents, to warn her against entering into the forced union.
Nevertheless, the will of the parents takes precedence over that of the man and woman who are about to be married, even for Heider. He recently dissuaded a Somali woman from marrying a German convert against her father’s wishes. The marriage would have been permitted under Sharia law.
«You can’t just pay attention to what’s possible under Islamic law,» Heider says. «You also have to take the social consequences into account.» The father wanted his daughter to marry a cousin.
Falling into a Trap
Heider says that he always advises couples to have a civil ceremony, as well, but many marriages between Muslims are performed only as Islamic religious ceremonies. Insiders like the family consultants Kazim Erdogan and Abed Chaaban estimate that imams perform 10 to 20 percent of marriages in their district of Neukölln in Berlin.
This is a trap for many women, because they are not considered married under German law. They cannot make claims for alimony, the family assets usually belong to the husband and the children are considered born out of wedlock.
Under Sharia, an imam isn’t even needed to perform such marriages. Any reputable Muslim can marry couples, as long as he can recite the wedding vows. Marriage offices in which self-proclaimed imams charge a fee for their services are a booming business in Berlin. Theologian Heider estimates that «up to 20 percent of all Muslim marriages are performed by these dubious people.» Officially, the fee is often defined as a donation.
Ali Chahrour, the chairman of the Mostafa Society for Integration and Women’s Rights, performs such marriages. The society has its headquarters in a small shop on Sonnenallee in Neukölln. Chahrour says that he is registered as an officiant for marriages with an «Islamic-Shiite Court» in Lebanon, which means that he only marries Lebanese or Germans of Lebanese birth.
Polygamy in Germany
A welder by trade, Chahrour says that performing marriages is «easy.» The woman must present a German or Lebanese document proving that she is not already married, and her father must consent to the marriage, even if the woman is of age. The man, on the other hand, is only required to show identification, but not to prove that he is single. This isn’t surprising, given that Sharia permits a man to have up to four wives.
There are no official figures, but Berlin family consultant Chaaban estimates that about 30 percent of all Arab-born men in the German capital have two wives. Attorneys specializing in family law are also familiar with these cases.
The men rarely live with several wives under one roof. They usually keep their second wife, to whom they are only married under Islamic law, a secret. Thanks to the social welfare state, the men often have no obligations under the second marriage. Under German law, the women are treated as single mothers and, if they are unable to support themselves, they receive benefits under the Hartz IV welfare reform program.
Family law attorney Scholz tells the story of a Muslim woman from Flensburg who was unaware for years that she was a second wife. She had only been married by an imam, and her husband had another wife with whom he already had four children. With her eight children, the second wife received so much money in residential, childcare and education subsidies that she didn’t even have to apply for Hartz IV benefits.
The husband managed to keep the two marriages a secret from his wives until the children from both marriages, who went to the same school, discovered they had the same father. The second wife now lives in a women’s shelter.
In 2009, German politicians made it even more difficult for young Muslim women to resist forced marriages. Under an amendment to marital status laws, any Protestant, Catholic or Islamic wedding can now take place before the civil ceremony. As harmless as this seems, it’s disastrous for girls who are to be married against their will.
The Islamic wedding can take place without German authorities knowing anything about it. In the families’ eyes, the marriage is considered contracted, and there is no turning back for the girl. «We missed something here,» admits Dieter Wiefelspütz, a Social Democratic (SPD) lawmaker and legal expert. Terres des Femmes is calling for a rapid return to the old law.
In February, SPD politician Jochen Hartloff, the justice minister of the southwestern state of Rhineland-Palatinate, publicly pondered the possibility of «Islamic arbitrators» applying «Islamic legal concepts» to German civil law.
After a public outcry ensued, Hartloff clarifed his position, saying that he had neither «advocated Sharia law,» nor did he believe that «Sharia judges are conceivable.» He insisted that he was only talking about «out-of-court dispute resolution influenced by lawmaking shaped by Islam.» Hartloff apparently didn’t know that this had already been going on in Germany for a long time.
But Hartloff was applauded by the chairman of the Central Council of Muslims in Germany. «Extrajudicial conflict resolution should be welcomed,» says Aiman Mazyek, «because it relieves the burden on our courts and is often capable of keeping the parties involved in the dispute satisfied in a more lasting way.» Family consultant Chaaban from Neukölln also says that his mediation is successful in 80 percent of cases. An imam from Essen estimates his success rate to be 70 percent.
An Increase in Violence
The burden on German courts is indeed reduced, but at what cost? Many women have to soft-pedal when imams become involved, and the violence often escalates after that. Arbitration could be the first step on the road to self-administered justice, and to the attitude that Muslims can handle their own problems.
In isolated cases, family conflicts can intensify and end in an extreme form of self-administered justice, the so-called honor killing. According to a study by the Federal Office of Criminal Investigation, there are seven to 10 such cases a year in Germany, although experts suspect that the number is much higher.
The not-so-spectacular cases are much more common. In Berlin, a Kurdish woman recently went to an attorney to file for a divorce. She said that her husband had beaten her repeatedly. After a few weeks, the husband called and asked for the bill, saying that at a family conference in Turkey it was decided that the couple should try to patch things up first. The wife contacted the attorney again after two weeks, this time with a broken nose.
Many experts have a low opinion of arbitrators, especially when it comes to forced marriage. «Any form of mediation with the families of the victims» is «extremely dangerous,» states a brochure issued by the Hamburg Senate and titled: «Actively Against Forced Marriage.» Actual practice shows that «mediation exposes the victims to a high level of risk and, in extreme cases, can lead to violence and murder in the name of honor.»
In talks about establishing aid for Muslim women at the EU level, the British government has said that it will not agree to a recommendation «that in any way advocates mediation as a means to resolve forced-marriage cases.»
German legal policy experts are still examining the issue. The Bavarian justice ministry has established a parallel justice task force to gather information. The Berlin parliament had experts testify to determine whether the phenomenon needed to be investigated any further.
Federal Justice Minister Sabine Leutheusser-Schnarrenberger, a member of the pro-business Free Democratic Party (FDP), warns of a parallel judicial system, and her ministry is in the process of establishing a position on Sharia law. The lawyers and ministry officials want to learn more about lay judges like furniture dealer Demir from Recklinghausen.
Sometimes Demir takes great pains to push a young woman into a life she doesn’t want. In one case, a woman fell in love, even though her uncle had already chosen her as a bride for his son, and her father had agreed. Demir traveled back and forth between Höxter, Hildesheim and Recklinghausen 30 times as a mediator. In the end, the girl bowed to the pressure from the three men.