International Law: Analysis of Circumcision and International Law

This essay delves into the complex legal and ethical dimensions of circumcision practices, examining the application of international law and treaties such as ICCPR, CROC, and CAT, along with domestic laws in various countries like the USA, Sweden, and South Africa. The essay explores the arguments for and against circumcision, considering health benefits, human rights, and cultural practices. It analyzes the role of customary international law, particularly the Universal Declaration of Human Rights, and investigates specific cases involving non-therapeutic circumcision and the involvement of medical professionals and international organizations like WHO. The analysis covers issues of informed consent, anaesthesia use, and the protection of children's rights, highlighting legal inconsistencies and ethical dilemmas surrounding circumcision practices globally.

INTERNATIONAL LAW

Table of Contents
INTRODUCTION...........................................................................................................................1
QUESTION 1..................................................................................................................................1
QUESTION 2..................................................................................................................................2
QUESTION 3..................................................................................................................................3
QUESTION 4..................................................................................................................................4
QUESTION 5..................................................................................................................................5
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
Circumcision of boys is highly accepted and also embedded in different culture such as
Judaic, Islamic and others; however, Female Genital Mutilation (FMG) is condemned. In the
world, it is forecasted that 1 out of 3 men, more importantly, young child undergone
circumcision process. Despite such a considerable proportion, opponents of circumcision argued
that babies who undergone such process experiences unbearable pain and also reduces sexual
pleasure. However, its supporters stated that it provides health benefits through reduction in
failure of sexually transmitted diseases. Different countries have different practices on
circumcision, like some allow non-therapeutic circumcision without anaesthesia while other
prohibits the same. Thus, the aim of the current research is to investigate various international
law and treaties such as ICCPR, CROC, CAT and domestic law that applies on circumcision.
QUESTION 1
In USA, genital cutting is very popular drawing attention on it, US Centers for Disease
Control and Prevention (CDC) emphasized that it helps to improve health benefit such as
reduction in HIV transmission, mitigate the risk of human papilloma virus (HPV) and lower
urinary tract infection also. According to CDC, approximately 80% of the American male
population are circumcised (Tontonoz, 2015). However, recently in 2012, American Academy of
Pediatrics (AAP) argued that the health benefits that newborn male circumcision provides
outweigh the risk associated with it. International Covenant on Civil and Political rights (ICCPR)
comprises international human right law which article 7 prohibits any kind of torture and cruel
treatment. Applying it to the given case study, Mike Pence stated that if he becomes President
than he will put a new law, as per which, Federal Government will not provide fund through
Medicaid and other programs to any hospital that refuses to circumcise any baby at the request of
their biological parents so as to protect parents’ ‘right to chose’. Thus, by this way, Pence favour
non-therapeutic circumcision on the basis of informed consent. However, its opponent, Peter
Adler challenged it on the ground that boys also have same right as to that of girls to enjoy
genital integrity. It is because, circumcision process even with the use of correct medical steps
constitute cruel treatment and torture on babies which is against the art 7 of the ICCPR.
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Besides this, there are number of treaties that protect vulnerable groups, like Convention
on the Rights of the Child (CROC) is a treaty. Its Art 37(a) laid down the specific injunction
against any action that torture or resultant cruel treatment with children, but the term of “torture”
is not clearly defined (Ruck and et.al, 2016). However, considering Convention against Torture
and Other Cruel and Inhuman or Degrading Treatment or Punishment (CAT) article 1.1 defined
the term very well. According to this, if any act resultant sufferings or severe pain either physical
or mental and was intentionally injected considered as torture (Heath-Brown, 2015). In addition,
Article 19.1 stated that states must undertake appropriate care, administration, educational and
social measures in order to protect children from any kind of physical or mental injury, violence,
negative treatment and others. Its article 19.2 clearly mentioned judicial involvement, education,
reporting and other possible actions so as prevent any risk to the child. Thus, Sweden could
claim that neonatal circumcision without the use of anaesthesia caused un-tolerable pain to the
child that violate both CROC and ICCPR (Arts, 2014). Moreover, Convention also obliges states
parties to take necessary measures to provide enough protection to the children against ritual
circumcisers. In Sweden, it is mandatory requirement that circumcision will be carried out only
under proper and sufficient anaesthetic administration by professionals. However, the same is not
applied in USA which breach ICCPR and CROC requirement.
QUESTION 2
Custom is also taken as important part of international law formulation. Customary
international law is a law that emphasizes upon custom. In Article 38 of ICJ, it is defined as a
general practice that is accepted by law. It considers two factors one is State practice and another
is that belief about various practices that are allowed or prohibited depending upon the rule
(opnio juris).
It is because, although, undoubtedly, circumcision is justified in USA because it fulfil
cultural and social demand and religious requirement wherein people believe in traditional
practices and said that routine circumcision without any anaesthesia is proper and appropriate.
For instance, in Jewish community, there is a religious ritual, called brit millah is performed on
the 8th day after birth. It is religious ancient practices popular in Judiasm. In the community, it is
a common orthodox that all male will undergo circumcision without using anaesthetic. It is
because, they believe mohelim (trained Jewish men) are experienced in performing bris and use
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of any anaesthesia may cause discomfort. Thus, they look traditional bris as properly conducted
medical treatment (Jacqueline, 2013).
Considering Universal Declaration of Human Right which is currently accepted all over
the world as a customary law, Article 5th prohibits inhuman treatment and torture, Article 12
provide privacy rights and 3rd Article indicates that everyone has liberty, security and right to
life. Article 37 mentioned that any person should not being cruel and tortured inhumanly or
degradedly treated (Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 2017). Article 24(3) bring attention to the most important aspect
which indicates that States Parties must took required measures in order to abolish traditional
practices that are against child healthcare requirement. Thus, taking into consideration all the
things, it becomes clear that providing non-therapeutic circumcision practiced in USA without
anaesthesia is against customary international law (Morris and Hankins, 2017).
QUESTION 3
Presently, in USA, all the hospitals whether they provide circumcision to the children or
not is funded by the government. However, as per the proposed plan of Mike Pence after
winning Presidency vote, he will implement a new law wherein none of the hospital will be
funded by the Federal Government who refused to carry out non-therapeutic circumcision. It is
because; Pence viewed it as an action against ‘right to chose’.
Thus, as per this, circumcision becomes compulsory for all of the hospitals so as to get
governmental funds. In USA, in the year 2011, more than 1 million babies were circumcised
with non-therapeutic neonatal male circumcision which is against US law. Although, several
anti-circumcisions groups banned such practices such as San Francisco, Californa introduced
legislation in 2011 which prevent local ordinance. In other states, public hospitals and local
authorities were allowed to restrict such practices, but there is no legal enforcement which
prohibit such actions. Compared to USA, South African Law is very clear. In this respect,
Children’s Act 2005 permits circumcision practices of boys aged 16 years or more only after
informed consent of their parents (Donnelly and Whelan, 2017). However, circumcision of male
children under 16 can only be performed on certain specific grounds such as performing
circumcision only for religious purpose will be conducted by medical practitioner or a properly
trained member However, still, the regulation does not specify that anaesthesia must be used,
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hence, providing treatment by a trained member is just a sign that indicate that medical
practitioner used anaesthesia during circumcision without any legal requirement. Thus, by this
way, it does not assure anaesthesia use for purpose of neonatal circumcision (Yssel and et.al.,
2007).
However, later on 23rd June 2011, Medical Association of South Africa made decisions to
prohibit the male infant circumcision practices as a means to prevent HIV transmission risk. Law
considered it as an unlawful and unethical action, still, it does not protect males from undesired
circumcision, more importantly for the boys falls in minor category. Section 8 of the law
prohibited the same for the male children under the age of 16 years. Its sec 10 also provide right
to the child to refuse circumcision. But under this, there is a requirement that child must be of
sufficient age, well developed and matured to have refusal right which is not well defined.
Besides this, in Sweden, Parliament introduced legal enforcement, according to which, only
certified persons by the National Board of Health are allowed for infant circumcision that will be
accompanied by an anaesthesia nurse for the application of anaesthesia. The main purpose of this
is to maximize safety and satisfy child healthcare requirement (Forbes, 2015). In despite to this,
in Netherland, Parliament declared circumcision of male as an unlawful act. Evidencing it, in
May 2008, a father who circumcised their two children aged 3 or 6 years old against his wife
desire considered guilty as it was undertaken by a physician. As a result, he was sent jail for 6
weeks for taking out boys away from his wife while she was not agreed. In 2012, in Norway,
circumcision of male under the age of 18 years declared illegal (Svoboda and Van Howe, 2013).
Thereafter, in September, 2013, in Nordic countries, Children’s ombudsmen presented a
statement wherein they claimed ban on minor circumcision for any non-medical reason. It is
because, it breach legal rights of children under Convention on the Rights of the Child.
QUESTION 4
According to the given case study, a Jewish couple adopted a young boy from South
African orphanage, named Ben. He born at a Johannesburg public hospital and his biological
parents were Jewish people. Earlier, the boy has been circumcised by mohel, Dr. Barak Levi free
of any charge. However, during the process of bris, things did not go well resultant serious
damages to his penis. The main reason behind this although all the hospital facilities were used
but, no nationality employed directly by South African government where as per the
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governmental anaesthesia were used by the doctors. This in turn, it resultant serious pain or
sufferings and now, Ben is also experiencing behavioural issues due to circumcision as said by
psychologists. Dr. Levi has South African regulation, it is clearly mentioned that in public
hospitals, no circumcision can be carried out without accompanied by anaesthesia. However, his
employer instructed him that he could perform bris in his spare time while there was strict
instruction not to use hospital facilities. Thus, circumcision performed by him on Ben is totally
against the legal requirement under South African Law.
In this process, doctor was facilitated by another South African obstetric trainer, named
Dr. Rafael Stein who was a medical officer. In this, WHO is in default because they appointed
the trainer to support VMMC (voluntary medical male circumcision) program held in South
Africa which specifically targets only boys above 16 years (Svoboda and Van Howe, 2013).
However, Dr. Stein heard that considering ongoing AIDS crisis in the country, more the number
of babies circumcision is considered better. Michael Prinz, an Australian nation employed by
NSW government also helped Levi who normally employed at public hospital in Sydney,
however, during the time of Ben’s circumcision, he was working as secondments to WHO as
part of Australia’s Aid in Kind program which obliged WHO for the default. It is because;
Australia was providing medical personnel so as to support WHO projects that are carrying in
developing nations. However, in South Africa, Prinz worked under the supervision of Stein and
he was instructed to follow all the “reasonable instructions” issued to him by his supervisor. In
this regards, although Prinz has responsibility to follow superior orders, however, the reasonable
instruction stated that here WHO did not violate any law. Here, Prinz himself is obliged because
he did not took reasonable care.
QUESTION 5
As Ben suffered excessive pain, behavorial issues and sufferings due to improper
treatment given by Dr. Levi, Dr. Stein and Michael Prinz. In this, s 6, 274.2 (2) of the Australian
Criminal Code on Torture, if a person (perpetrator) is engaged in such conduct that causes
physical or mental injury to another, then person is must be penalised by 20-years imprisonment
(Criminal Code Act, 1995). Similarly, committing offence by the perpetrator results also stated
that person must be sent in jail for 20 year.
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CONCLUSION
Thus, from the case study analysis, it becomes clear that considering foreign law and
cruel treatment and torture under non-therapeutic circumcision, it becomes clear that USA must
make anaesthesia use mandatory for all the hospitals while performing circumcision.
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REFERENCES
Books and Journals
Arts, K., 2014. Twenty-five years of the United Nations Convention on the Rights of the Child:
Achievements and challenges. Netherlands International Law Review. 61(3). pp.267-
303.
Dawson, A.J. and et.al., 2015. Midwives’ experiences of caring for women with female genital
mutilation: Insights and ways forward for practice in Australia. Women and
Birth. 28(3). pp.207-214.
Donnelly, J. and Whelan, D.J., 2017. International human rights. Westview Press.
Forbes, D., 2015. Circumcision and the best interests of the child. Journal of paediatrics and
child health. 51(3). pp.263-265.
Heath-Brown, N., 2015. Universal Declaration of Human Rights. The Statesman’s Yearbook
2016: The Politics, Cultures and Economies of the World. pp.8-10.
Jacqueline Smith. 2013. Male Circumcision and the Rights of the Child. In: Mielle Bulterman,
Aart Hendriks and Jacqueline Smith. To Baehr in Our Minds: Essays in Human Rights
from the Heart of the Netherlands. pp. 465-498.
Morris, B.J. and Hankins, C.A., 2017. Effect of male circumcision on risk of sexually transmitted
infections and cervical cancer in women. The Lancet Global Health. 5(11). pp.e1054-
e1055.
Ruck, M.D. and et.al, 2016. The United Nations Convention on the Rights of the Child: Its
relevance for adolescents. Journal of Research on Adolescence. 26(1). pp.16-29.
Svoboda, J.S. and Van Howe, R.S., 2013. Out of step: fatal flaws in the latest AAP policy report
on neonatal circumcision. Journal of Medical Ethics. 39(7). pp.434-441.
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Yssel, N. and et.al., 2007. Views of inclusion: A comparative study of parents' perceptions in
South Africa and the United States. Remedial and Special Education. 28(6). pp.356-
365.
Online
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
2017. [Online]. Available through: <
http://www.ohchr.org/Documents/ProfessionalInterest/cat.pdf>. [Accessed on 17th
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Criminal Code Act, 1995. [Online]. Available through: <
https://www.legislation.gov.au/Details/C2015C00254/Html/Volume_2>. [Accessed on
17th October 2017].
Tontonoz, M., 2015. Why is Circumcision so popular in America. [Online]. Available through: <
https://matthewtontonoz.com/2015/01/05/why-is-circumcision-so-popular-in-america/>.
[Accessed on 17th October 2017].
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