TRIBUNAUX DE LA CHARIA EN ALLEMAGNE
In the Name of Allah Islamic Mediators and Germany's 'Two Legal Systems'
By Joachim Wagner
Michael Dannenmann/ DER SPIEGEL
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.
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.
Forced Marriages
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.
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.
- Part 1: Islamic Mediators and Germany's 'Two Legal Systems'
- Part 2: 'We Missed Something Here'
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