For the first time, the European Court of Human Rights will rule on polygamy. It was seized by Khaled Al-Anesi, a polygamous Yemeni lawyer who obtained asylum in the Netherlands after the Arab Spring. Initially, he brought his first wife and their eight children there, as part of family reunification. Secondly, he gave up asking for his second and third wives, knowing polygamy was prohibited in the Netherlands, but asked for the five children he had with them. The Netherlands refused this new request due to the ban on polygamy, further considering that these children do not need to come to the Netherlands, because they already enjoy good living conditions in Turkey, where they are refugees with both their mothers.
To allow this family reunification, the Dutch authorities had however suggested to the Yemeni to divorce these two wives, which he refused. For the first reunification, the authorities had already asked him to choose among his wives the one he wanted to bring with their children. Which he did. This Yemeni refugee is now attacking his host country before the European Court of Human Rights (ECHR), for violation of his right to respect for his family life, due to the refusal to welcome his five other children.
An unprecedented judgment
This is the first time that the European Court has agreed to judge a polygamy case. We have to go back to 1992 to find a decision on this subject, taken by the former European “Commission” of Human Rights. This case is therefore very important, but also pernicious, because it does not directly attack the ban on polygamy, but undermines it, by challenging the refusal of reunification with children due to the ban on polygamy. This case raises several major problems in the system of thought of human rights and the Court.
First of all, it shows the incapacity of the human rights protection system to thwart its own exploitation. Indeed, it seems obvious that the Yemeni’s intention is to bring his children and then obtain, in their name, the arrival of their mothers. Indeed, if family reunification of mothers is requested by their minor children, and not by the husband, it cannot be refused to them because of polygamy. Its ban would then be circumvented thanks to human rights. However, the judges are only seized of the specific case of the children, and they cannot judge it based on the future intentions of the applicant, especially since this judicial strategy of circumventing the ban would be perfectly legal.
The Court has so deconstructed the notion of family that it obviously extends to polygamous families
This affair then reveals a second structural problem of the human rights protection system; his blindness to the indignity of the applicant’s attitude. In fact, he was welcomed and financially rescued by the Netherlands while he was fleeing Yemen. The Netherlands provided him with material assistance, then allowed him to be joined by a wife and their eight children, who benefited from the living conditions of Dutch society. Ungrateful, he now attacks his “benefactor” to demand the “right”, of which he would be unjustly deprived, to have the other members of his family immigrate.
In doing so, he also undermines one of the country’s cultural foundations: the ban on polygamy. The human rights system is incapable of seeing this glaring injustice, because it judges no further than the tip of its nose. He judges on a case by case basis. But what is the debt that the Netherlands would have contracted with regard to this man and his 15 wives and children? Is it not he who is an insolvent debtor to the people who helped him? The ECHR is not capable of seeing this superior justice, because human rights start froma priori that the individual is right, and that society must justify itself. The Man of Human Rights is “abstract”, he has no homeland.
Does the Court protect polygamous families?
This case finally reveals a third major problem: the inability of the European Court to justify – on the merits – the prohibition of polygamy. The Court has so deconstructed and extended the notion of family, in the name of individual freedom, that it obviously extends to polygamous families, and protects them. Thus, for the Court, States should recognize Lare “atypical family relationships” and accept “the idea that there is more than one possible path or choice regarding how to lead a private and family life”. In its case law, the Court has denied any authority to “considerations of a moral nature or relating to social acceptability”Or “to traditions or general assumptions in a particular country” to justify a ban.
From then on, it has become impossible, in current thinking, to justify the refusal of polygamy in the name of monogamy, that is to say in the name of a moral and religious norm. However, monogamy is at the foundation of Greco-Latin and Christian civilization. It is a question of value and not of rights. The rejection of traditions and morality makes the Court blind, incapable of recognizing the civilizational value of monogamy, incapable of conceiving that the preservation of European identity and culture can justify restrictions on individual freedoms.
As for the argument of equality of the sexes, the Court has already dismissed it, in the name of freedom. Seized of the ban on the public wearing of the full veil, the Court, in its most solemn formation, rejected this argument invoked by France. She then memorably declared, “that a State party cannot invoke gender equality to prohibit a practice that women – such as the applicant – claim in the context of the exercise of the rights enshrined in these provisions, unless it is admitted that in this respect one can claim to protect individuals against the exercise of their own fundamental rights and freedoms. » (SAS v France).
A few lines later, the Court continues by declaiming that “in its difference, (wearing the full veil) is the expression of a cultural identity which contributes to the pluralism on which democracy is nourished”. We see it: liberal individualism sweeps away everything in its path. All that counts is individual autonomy. In fact, the logic of liberal individualism of “abstract human” rights has nothing to oppose to polygamy; on the contrary, it leads to it.
The ECHR deprived
The Court therefore finds itself completely helpless. Ready to allow herself to be exploited, thus facilitating the circumvention of the ban on polygamy. However, she knows how certain gGovernments would be scandalized by explicit support for polygamy. It is therefore to be feared that, in its intellectual deprivation, the Court will be reduced to bias, that is to say, to claiming not to rule on polygamy, but only on the situation of children. But in doing so, it would implicitly accept that polygamy is not a sufficient reason to refuse reunification.
Another path would consist of recognizing that polygamy is a sufficient reason; or to remember that the European Convention does not guarantee “the right to marry and found a family” between a man and a woman of marriageable age. It could then deduce that polygamous families do not benefit from the protection granted to families under this Convention. If they were truly in danger, children could request asylum, but not family reunification.
