Bad judgment at Strasbourg?

By Michael Pinto-Duschinksy, November 26, 2012
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Two months ago, the JC published an exceptionally important article by Jonathan Fisher QC. Drawing attention to wording used in a 2010 European Court of Human Rights (ECHR) judgment, he warned that the court might be minded to restrict or ban the time-honoured Jewish practice of male circumcision throughout Europe.

An organisation named Milah UK, representing all branches of the Jewish community in the UK, has now been set up to promote and defend circumcision.

What made Fisher's piece particularly significant is that he is a member (as I was) of the government's commission on a bill of rights and has direct knowledge of the Strasbourg-based ECHR. Nowadays, this body is rarely out of the national as well as the Jewish press, as we saw last week with the case of the Van Colles, whose son was murdered 12 years ago. The ECHR ruled that Hertfordshire police had not violated his rights to life and to respect for private and family life.

Fisher's piece led to fierce reactions across the blogosphere and Twitter, including from Jewish barrister Adam Wagner on his UK Human Rights blog. Wagner subsequently wrote a critique for the JC, which I believe was a damp squib. He argued that the Bible commanded Jews to pursue justice, which certainly is true. But I question whether it constitutes a reply to Fisher's concern about the potential of the Strasbourg court to attack core Jewish religious practices? His piece did not mention the circumcision issue.

There are fundamental reasons - religious, moral, cultural and historical - why Jews are and ought to be active proponents of human rights.

Nevertheless, we need to recognise the distinction between the admirable ideals of human rights and the flaws of some of the bodies - especially the international ones - that have sprung up since the Second World War. The UN Human Rights Council is notoriously biased against Israel and has been packed with representatives of regimes such as Gaddafi's Libya.

The European Court of Human Rights has not been nearly as bad. But it arguably has failed to live up to its stated objectives. I daresay Fisher was as struck as I was when we visited the Strasbourg headquarters of the court's parent body, the Council of Europe. Above its front steps stands a monument to the victims of Auschwitz. The express role of the Council and of the ECHR is to prevent another Auschwitz. Distinguished Jewish jurists - Sir Hersch Lauterpacht, Raphael Lemkin and Rene Cassin - influenced the international conventions that led to the ECHR's creation. But, despite this background, champions of Strasbourg repeatedly and flippantly upbraid those who mention the Holocaust in the context of the aims of the Strasbourg court. Evidently, only proponents of the court are permitted to do this.

The Strasbourg court may in fact do the exact opposite of what was originally intended. Far from protecting Jewish rights, it is on track to do the reverse. Circumcision has recently been challenged before the courts in Cologne. In order to overturn the judgment of its courts, the German government has approved a law permitting brit milah under restricted conditions, which now requires parliament's approval.

Should the law pass, anti-religious activists will then be able to ask the ECHR to overturn German law. The fact that the court issued obiter dicta remarks in 2010 calling male circumcision "contentious" and harmful, opens the way to a future anti-circumcision judgment. This would then apply to the UK. Without a change in the UK's relationship with the Strasbourg Court, the UK Parliament could do nothing to protect Anglo-Jewry.

Michael Pinto-Duschinsky was a member of the UK Commission on a Bill of Rights in 2011-12

Last updated: 12:45pm, November 26 2012