Taharrush jamai in Cologne

During the New Year’s Eve celebrations in Cologne (Köln), more than 300 women were sexually assaulted by groups of men in the city centre. The perpetrators were not German, and were specifically described as young men of North African / Arab appearance. The story went viral a few days later, mainly because of its implications for Germany’s refugee policy. Public opinion, and most of the media, linked the incidents to the admission of one million refugees to Germany in 2015, predominantly from Syria. Subsequently, similar incidents were reported from other cities.

This type of group sexual assault has a name, originally in Egypt: Taharrush jamai. However, in Egypt the context was political: it was used to harass women demonstrators specifically, and may have originated as a tactic of the security forces.

Reactions to the Cologne incidents have been predictable. The authorities state that they are investigating the matter. Feminists condemn sexism. Anti-racists denounce racism. Anti-immigration groups call for refugees to be refused entry, and/or deported. Some individuals on social media advocated violent retribution against refugees, even extermination.

This post tries to go beyond the predictable responses. I will start with the German Constitution, not because constitutions say everything about a society, but as a good starting point.

Article 1 of the constitution, the Basic Law, states that: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” That article was not intended to refer to sexual assault: when speaking of the ‘violation of human dignity’, the authors had Auschwitz in mind, and other horrors of the Nazi period.

Now the women who were sexually assaulted in Cologne would generally feel that their human dignity has been violated. The constitution has failed them, and the explanation is obvious: Article 1 does not mention women. Human dignity itself is too vague, to serve as a guideline for state policy toward specific groups.

It is true that Article 1 binds the German state, and would prevent that state from exterminating the refugees. That prohibition is close to its original intention. Nevertheless, among the hundreds of women who were assaulted in Cologne, there may be some who would prefer to see their assailants sent to the gas chamber. The constitution does not take account of that preference. The political elite may find it distasteful, but suggestions to kill all refugees / immigrants /muslims are a recurrent feature of social media response, to outrages committed by members of these groups. My estimate is, that about 1% to 3% of the population in western Europe, do indeed wish to see minorities killed by the state. Certainly such people exist: not talking about them, will not make them disappear.

Now the issue can be formulated as two options. Suppose the only choice is between these outcomes:

  1. Germany does not send refugees to the gas chambers, and Angela Merkel is sexually assaulted by a group of refugees.
  2. Angela Merkel is not sexually assaulted by refugees, because Germany has killed all the refugees in gas chambers.

If you asked Angela Merkel, she would choose option 1. Her abhorrence of a repetition of Nazi mass murders, outweighs her fear of being sexually assaulted. However, she cannot make that choice for other women, since that would override their moral autonomy. In a more generalised form, the two options might look like this:

  1. Germany is a democratic state under the rule of law, and it respects human rights and human dignity, and Angela Merkel is sexually assaulted.
  2. Germany is an undemocratic state, it abuses human rights, it rejects the rule of law, and violates human dignity, but Angela Merkel is not sexually assaulted.

Again Angela Merkel would choose the rule of law, democracy human rights, and human dignity, and accept sexual assault. And again, she should only make that decision for herself. But of course in reality, as Chancellor, she does make that decision on behalf of others.

Article 1 of the Basic law expresses an underlying principle, that if the state can only prevent harm to an individual by violating human dignity, then the state should not prevent that harm.

That is essentially a value preference, and it almost inevitably results in violation of human dignity by non-state actors. The German state, and its political elite, should therefore recognise that apparently sacred values such as the ‘inviolability of human dignity’ must be subject to freedom of conscience, and that it can be rational to reject them, on the grounds of their imperfections and ambiguities. Similar considerations apply to democracy, human rights, the rule of law and other ‘sacred’ principles, which in reality are no more than a personal value preference.

I am not saying that these are empty formulas. Reactions on right-wing blogs and forums, and even the comments on ordinary commercial news sites, include many shocking proposals for dealing with refugees and migrants in Europe: imprisonment, the death penalty, castration of male refugees, bombing refugee boats, the return of the gas chambers, and so on. Abandonment of constitutional formula’s such as ‘human dignity’ would open the door to such practices.

Nevertheless, some people do want the refugees killed. Germany must recognise conscientious objection to its ‘sacred’ values, purely on the grounds of moral autonomy. That raises another issue: if human dignity is a German value, are those who reject it still German? Increasingly, European governments are moving to a value-based definition of national identity, initially for those with double nationality. The implication is that those who do not endorse and support the national values, cease to be members of the nation. That is a significant break with long-standing ethnic definitions of national belonging. At present, however no European nation-state has any formal mechanism, to deal with those who are of national descent, but do not adhere to national values. Logically, they would be stripped of their citizenship and deported, but to where?

A related issue is the state monopoly of force, which is not a constitutional norm, but a descriptive formula. According to the sociologist Max Weber, the claimed monopoly of force is a defining characteristic of the state. Nobody told states to claim it, before they first emerged several thousand years ago, but when they did emerge, then apparently all states claimed this monopoly of force. The term has taken on a normative significance, certainly in Germany.

As with human dignity, the state monopoly of force is unequally implemented. The women who were assaulted in Cologne were also subjected to force. On the other hand, the state places limits on what they may do to defend themselves: they may not carry or use a gun, let alone form a women’s militia. Just as the inviolability of human dignity leads to violations of human dignity, the state monopoly of force leads to widespread use of non-state force, usually by the strong against the weak.

With this background it is evident, that the German government is directly responsible for the sexual assaults in Cologne and other German cities. The state took a conscious decision not to prevent them. That will be clearer if you look at the countermeasures proposed below.

In general we can recognise that a liberal-democratic government is ultimately responsible for most social actions, at least inside the state. The principles of a liberal society state that the social process should run its course, with only a few exceptions. Specifically, the German government has access to powers and instruments of repression, and choose not to use them in this case. What’s more, it won’t use them at the next New Year’s celebrations either, or at any other high-risk event, so the sexual assaults will predictably recur.

Countermeasures and the constitution

So what can be done to respond to the group sexual assaults, and to the underlying constitutional and moral issues?

Preferably Article 1 of the Basic Law should be scrapped, since it is too vague. If it is retained, it should be qualified to indicate that the state does not only protect ‘humans’, but also women. Men, and transgenders, should also be named explicitly. The protection of the state should also be extended to Muslims, since their claim to protection is disputed by some opponents of Islam. In fairness, Article 1 should also specifically name Christians, Jews (adherents of Judaism), and atheists, as subject to the protection of the state.

To more specifically protect women, the constitution should recognise the existence of sexual assault, and specifically group sexual assault (taharrush jamai). The constitution should also specifically recognise conscientious objections to all forms of sexual assault. That will prevent the government from telling women, that they must accept sexual assault in some circumstances.

The constitution should recognise conscientious objections to the admission of refugees to Germany, and more generally to the admission of immigrants. To make this recognition explicit, the state should hold a referendum on these controversial issues. It will not result in an acceptable compromise, but it will allow voters to express their opinion, clearly and undeniably. The probable result of a referendum on refugees, is that Germany would cease to accept any more, and would close its borders to future arrivals. It is also quite possible, that voters would approve the expulsion of most of the refugees already inside Germany. On immigration generally, a referendum would probably approve a moratorium, meaning that no more migrants would be admitted, even from the EU. A minority of German voters, possibly about 10% to 15%, would support the expulsion of all migrants currently in Germany. The re-institution of border controls would probably be approved, leading inevitably to the collapse of the Schengen zone. It is also possible, that a majority of German voters might approve a border wall, at least on the southern and eastern borders.

A more rigorous option is that any German citizen should be allowed to veto the admission of refugees to Germany. Of course, some Germans do want to admit refugees, and it would be oppressive to subject them to this veto. They should therefore be allowed to veto the decision not to admit refugees. Both veto actions are legitimate and moral, yet they are contradictory, incompatible, and irreconcilable. There can be no resolution of this incompatibility by democratic process, and the double veto should therefore trigger an automatic partition Germany into two states. One Germany would admit refugees, and the other would not. This partition will additionally provide women with full and complete protection against group sexual assault by refugees, since by definition this cannot happen if there are no refugees.

If there is no partition, then women should be allowed to form armed women’s militias, to defend themselves against sexual assault. Some of the militias will be feminist in nature. Others will probably be under nationalist influence, and form a threat to refugees. The refugees should therefore be allowed to form refugee militias, to defend themselves against the women’s militias.

Of course this contravenes the quasi-constitutional principle of the rule of law. (Germans would speak of the Rechtsstaat which is not a direct translation of ‘rule of law’, but I treat them as roughly equivalent here). It also contradicts the principle of the state monopoly of force.

However, these are merely foundational principles of the liberal state, and there are many types of state. They indicate the political value preference first formulated by Thomas Hobbes: ‘subordinate individual defence against harm, to public and civic order’. It works in practice: liberal societies are generally peacefully, and the strong prosper. However, the weak suffer, because they cannot defend themselves. There are simple alternatives, and one of them is institutionalised group self-defence. A proliferation of armed militias will lead to less harm in a society, since the weak can defend themselves. More bloodshed means less injustice.

Value preferences differ, however. The German constitution should therefore define the national values, and establish a procedure for denaturalisation of ethnic Germans who do not support those values. The national values must then be explicit. For instance the constitution could say explicitly, that if the state can only prevent harm to an individual by violating human dignity, then the state should not prevent that harm. Once the principle is explicitly stated, it can be explicitly rejected. German women who were victims of sexual assaults, and sought protection against such assaults by violations of human dignity, would then lose their citizenship. Logically they would have a separate state, which again would amount to a re-partition of Germany, although the issue is more appropriately addressed at European level. Alternatively, the constitution could say, that human dignity can be violated to prevent harm to an individual. In that case, the supporters of the inviolability of human dignity would lose their citizenship, and be obliged to form a new state.

In fact, the German constitution should state that sexual assault is the supreme evil, and that all other evils are permitted to end it. That sounds extreme, but it is merely logical. The idea is to give the authorities no room for evasion, when dealing with sexual assault. At present they can argue that sexual assault is the lesser evil, when compared to some specific alternatives, and therefore justifiable. This reasoning in practice obliges women to submit to sexual assault. The German constitution should also state explicitly that prevention of sexual assault overrides democracy, the rule of law, human dignity, international treaties, resolutions of the Security Council, peace in Europe, national security, the Atlantic alliance, and all other provisions of the constitution. This is necessary to stop an unwilling government, from using these principles to justify inaction against sexual assault.

Similar considerations apply to any harm. It is in the nature of the liberal state, not to intervene against harm to the weak. If weak individuals are harmed, then the liberal state will generally abandon them. To counteract this culture of abandonment – which was illustrated by the passivity of the police during group sexual assaults in German cities – the constitution must be rigorously re-formulated.

Of course many Germans would be deeply shocked, if their constitution suddenly abandoned democracy, the rule of law, human dignity, international treaties, the United Nations, the commitment to peace in Europe, and national security. The Constitution must therefore recognise conscientious objections to the Constitution. It should allow dissenters to leave the German people and the German nation, to renounce their German citizenship, and to become stateless. In practice, again, that would amount to a re-partition of Germany. There would be one German state, where the prevention of sexual assault was subject to democracy, human dignity, the rule of law, and so on. It would resemble the present Germany. There would be another German state, where the prevention of sexual assault was the sole guiding principle and duty of the state: that state provide a safe haven for women who feared sexual assault.

As so often with controversial issues, secession, partition, and separation offer the only policy option in the face of irreconcilable principles. I avoid the term ‘solution’ – there is no solution. Nevertheless, there may be some benefit in applying these principles at sub-state level.

Germany should therefore create refugee-free zones, for people who fear refugees. Since these individuals often fear other migrants as well, in practice the refugee-free zones could be combined with migrant-free zones. Migrants would not be allowed to enter these zones.

This principle should be extended to all those who fear specific groups. As a general principle, the state should treat the fears of any group as valid, regardless of whether they are grounded in reality. The state should then protect individuals against those groups which they fear. So for instance, if women fear being groped by men on public transport, then there should be separate public transport for women. It is irrelevant whether all men do this. The state should not test the validity of individual fears, no matter how absurd or paranoid they are.

If some German women think that all male refugees will sexually harass them, then these women should be protected against all male refugees. Equally, if refugees in Germany fear attacks by nationalists, then the state should protect them again all nationalists, even if only a small minority actually attack refugees. Separation would in practice be the primary form of protection. It is more effective than the criminal law, which generally applies only after a harm has been done.

Obviously these policies would have dramatic consequences for Germany’s neighbours, for the quality of life in Germany itself, and for the character of German society. Nevertheless many people want this kind of Germany, and it is better for the state to recognise their wishes. Those who don’t want to live in this kind of Germany, can leave. If large numbers renounce their nation and their citizenship, then once again, re-partition is the most logical option.

Such options are also possible in decentralised form, at local and regional level. Following a local referendum, individual local government units (Stadt, Gemeinde, Kreis) could become a refugee-free zone, or more generally a foreigner-free zone. Many people find this type of policy objectionable, since it reminds them of the Nazi policy of creating Jew-free (Judenrein) villages and towns. However it has the advantage of allowing both sides to create a local environment that corresponds to their values and hopes. Women who fear refugees could live in a refugee-free town, while others could live in a multi-ethnic town that welcomed refugees.


Demonstration against the assaults, Cologne cathedral.

Image and header image © Raimond Spekking / CC BY-SA 4.0 (via Wikimedia Commons)

The position of women

The German state should also respond to the specific disadvantage of women. Since the existing police forces clearly fail to protect women, there should be a separate women’s police, composed entirely of women. Since the existing judicial system clearly fails to protect women, there should be separate women’s courts, to try criminal offences against women, and offences committed by women. The legislature should also be improved in this respect. At present, women sit in the German parliament (Bundestag), but not as representatives of women. To ensure that women are in fact represented as such, 50% of the seats in the Bundestag should be reserved for women. Political parties would not be allowed to select or promote candidates, for those reserved seats.

Local governments in Germany should also be obliged to create separate women’s zones on their territory, if requested by 1% of their adult female population. Males over the age of 15 years would not be allowed to enter these zones. Obviously a similar requirement would apply to men, but there is probably no real demand for ‘men’s zones’. The requirement to segregate by gender should also apply to state-provided and state-funded facilities such as schools and universities, libraries, health care, and sports facilities. Separate women’s facilities should be available to any woman in the region where she lives, although not necessarily on the territory of every local government unit. Separate women’s spaces would facilitate, although not necessarily create, a parallel women’s society.

New Years Eve in Cologne

With such principles in mind, it is easy to see how a repetition of last years incidents can be avoided. The City of Cologne should designate a separate women’s zone for the celebrations, for instance in the Rheinpark, which is on the riverside and has no through roads. The perimeter of the zone would be guarded by a large force of police and security guards, with female security guards inside. To allow women to reach this zone safely, the city should establish collection points in each residential area, so that women would not have to walk more than a few streets. From there they would be taken in women-only buses, escorted by police and security guards, to the women’s zone. Without 500 m of the women’s zone, there should be a curfew: residents would have to stay indoors until the next morning.

The women’s zone would be voluntary. However, to prevent sexual assaults outside the women’s zone, there should be additional measures. All public and private events, shows, and parties should be prohibited. The sale of alcohol should be banned on the 31 of December, and until noon on 1 January – not only in shops, but also in bars, clubs and restaurants. All places of work, except essential services, should close at noon on 31 December. Public transport should shut down at about 18:00. At that time, the inner ring road would be sealed off, and only residents would be allowed to enter the central area. The Rhine bridges would also be closed to traffic, except for residents who need to reach homes on the other side. All vehicular traffic inside the motorway ring would be prohibited after 21:00. Except for the women going to the women’s zone, all residents of the city would be advised to stay at home, and not go further than 100 m from their front door. These measures would not prevent people celebrating with family or neighbours, but will impede the formation of large hostile or malicious groups.

Needless to say, such measures are a blow to German traditions of alcohol-fuelled New Year’s Eve celebrations. They would be hugely unpopular. In reality, authorities in Cologne would refuse to do anything like this. They would say it is ‘discriminatory’, that it ‘contravenes human rights’, that it is ‘undemocratic’, and so on. That merely illustrates the need to override such principles – because if German cities don’t do something like this, then women will be sexually assaulted again, on 31 December 2016.


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