Convert or die: forced religious conversions and the convention on the prevention and punishment of the crime of genocide.

Author:Lee, Nathan
 
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  1. Introduction II. Why Genocide? A. Inadequacies of Other Penal Instruments B. The Convention's Reach III. Interpreting the Convention's Text and Purpose IV. Evolution of the Definition of Genocide, Forming the Convention, and Relevant Debates A. Lemkin's Conception of Genocide B. International Recognition 1. The Secretary-General's Draft 2. The Ad Hoc Committee's Draft 3. The Final Convention C. Relevant Debates 1. Protection of Religious Groups 2. Exclusion of Political Groups 3. Exclusion of Cultural Genocide a. The Cultural Genocide Exclusion Prevented Direct Debate on Forced Religious Conversions 4. Inclusion of Forced Transfer of Children V. Forced Religious Conversions as Genocide A. Genocide Requires Physical Destruction B. Genocide Requires Physicality C. Permanence D. Cultural Genocide VI. Conclusion I. INTRODUCTION

    They took the women and children to a warehouse and locked them up. They searched us.... They looked at the identity card of one man and found that he was a police sergeant. They started beating him with their guns. They then dragged him away and cut the back of his neck with a knife. They [then] asked us to do the [Muslim] prayer. They told us if we didn't pray they would kill us. Those who prayed they took to one side. Those who refused, they kept on another side. I saw a man sitting on the ground. He said he was a pastor. He was preaching and disturbing the Mohammed Yusuf people. He was saying that we should not give up and that we should not betray Jesus. It is better for us to die in Christ. They beat him and then carried him away. I saw one of them cut the back of his neck with a sword. He didn't die right away but continued to struggle. The third person I saw killed was a woman. She was shouting at her husband not to pray.... They [Yusuf's followers] tried to stop her from tormenting the people, but they couldn't. Her voice was too much, so they killed her. They dragged her out. [Later] I saw her lying dead. I thought it is better for me to pray to get my family back, so I said I will do the prayer. We did our ablutions and one of them led us in prayer ... They gave me a new [Muslim] name. I chose the name Isa. It means Jesus. (1) There is little doubt that the atrocities committed by Mohammed Yusuf and his Islamic terrorist group, Boko Haram, were of such a horrific nature that they should be punished. The atrocities are likely "self-evidently criminal." (2) But there is a question of whether the crimes can be classified as the "crime of crimes"--genocide. (3)

    The Convention on the Prevention and Punishment of the Crime of Genocide (Convention) defines genocide as committing a genocidal act "with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group." (4) The five genocidal acts include:

    (a) Killing members of the group;

    (b) Causing serious bodily or mental harm to members of the group;

    (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

    (d) Imposing measures intended to prevent births within the group;

    (e) [And] [f]orcibly transferring children of the group to another group. (5)

    If Boko Haram had set out to kill every Christian in Nigeria, the killing would certainly be classified as genocide. (6) However, Boko Haram's actual conduct makes this classification less certain. They did not simply kill the Christians, but instead gave them a way to survive: convert to Islam and live. Many of the captured Christians took this "out" and survived. (7) They were newly converted Muslims, but alive nonetheless. Yet, from Boko Haram's perspective, the result was the same: the destruction of Nigerian Christians.

    Does this conversion "out" make Boko Haram's conduct less reprehensible? If all Nigerian Christians chose death over conversion, would the genocide classification be different than if Boko Haram had simply killed them without providing an "out"? Does the fact that most of the threatened Nigerian Christians chose conversion over death matter? Should the legal classification of a crime depend on the victim's spiritual resolve? This Article seeks to answer these questions by setting out an argument illustrating how forced religious conversions can be classified and punished as genocide. (8) While forced conversions may not, at first glance, fit plainly within the Convention's definition of genocide--unlike other crimes, such as mass killings--this Article sets forth an argument, which is grounded in the Convention's text and drafting history, that shows how forced conversions fit within the Convention's scope.

    For clarification, this Article will limit the definition of forced religious conversions to forcibly requiring an individual to convert from one religion to another by threat of death or severe bodily injury, or by the infliction of severe bodily injury. This definition brings forced conversions squarely under the Convention's coverage in two ways. First, Article II of the Convention explicitly states that "[k]illing members of' a group or inflicting "serious bodily or mental harm" with the intent of destroying the group is genocide. (9) Part of the reasoning for recognizing the Convention's protection against forced conversions is that if victims of forced conversions had great spiritual resolve and chose the alternative to conversion (i.e., death, torture, etc.) then the alternative would undoubtedly be classified as genocide. It does not make sense for the genocide classification to depend on the victim's spiritual resolve and not on the perpetrator's conduct. So, for forced religious conversions to be genocidal, the threatened actions must be of such a severity that they would constitute genocide in the absence of the choice to convert. The second reason for this limited definition is that genocide requires a level of severity. Courts that have found genocide through mere trauma require a high level of severity for the trauma to be genocidal. (10) Trauma that lacks sufficient severity and that causes only "minor or temporary impairment" to the victims' "mental facilities" is not genocide. (11) Requiring the threatened action to be of such a severity that, if followed through, it would constitute genocide under Article II(a)-(b) of the Convention, thus causes the threat to be sufficiently severe that it falls squarely within the Convention's coverage. (12) For example, the imposition of a "non-Muslim tax" on Christians in Iraq to coerce them into converting to Islam is not genocide, but it is genocide for a militant group to threaten residents of a Baghdad suburb to convert to Islam or be killed. (13)

    An additional limitation is that forced conversions must be done with genocidal intent, which is "to destroy, in whole or in part, a ... religious group." (14) This means that forced conversions in Egypt and Pakistan, where girls are kidnapped and forced to convert to Islam so that they can be married to Muslim men, are not genocide, because the intent behind the conversions is to provide the men with Muslim wives and not to destroy Christian and Hindu groups. (15)

    Part II of this Article will discuss the prevalence of forced religious conversions and the necessity for classifying the crime as genocide rather than relying on other penal instruments. Part III will utilize the Vienna Convention on the Law of Treaties to show how the Genocide Convention applies to forced religious conversions. Part IV will examine the drafting history of the Convention to confirm that the drafters' intentions place forced conversions within the Convention's coverage. Part V will demonstrate how forced religious conversions fit within both the Convention's framework and within the drafters' intentions. It will also address several objections that scholars have raised to including forced conversions within the Convention's coverage.

  2. WHY GENOCIDE?

    The issue of forced religious conversions needs to be addressed on an international scale, not just because of the crime's reprehensibility, but because of the frequency with which it is being committed around the world. In the last decade, there have been numerous reports of forced conversions. In Egypt, Coptic Christian girls are kidnapped, drugged, raped, and beaten until they convert to Islam and marry Muslim men. (16) Similar conversions and marriages are being forced upon Hindu women in Pakistan. (17) In Indonesia, churches are burned and Christians beaten until they convert to Islam. (18) In Nigeria, Christians are rounded up and killed unless they convert to Islam. (19) As Islamic State forces advance, Northern Iraqi Christians are forced to flee their homes to escape the choice of conversion or execution. (20) In Syria, as rebel forces take control of Christian villages, Islamic extremists are forcibly converting the villagers under the threat of "convert ... or ... be beheaded." (21) Islamic extremists have forced Christians in Libya to convert to Islam and have murdered those who refuse. (22) In the Balkans, Muslims have been forced to convert to Catholicism on threat of death. (23) And in Burma, Chin Christians have been forced to convert to Buddhism. (24) Almost every one of these incidents occurred in conflict zones or in countries in which the governments have been powerless to prevent them. Because of the widespread commission of forced conversions, and because of local governments' inability to prevent them, this crime needs be addressed on an international scale.

    The next two subsections will address why forced religious conversions are not adequately addressed by other penal instruments and how forced conversions fit within the Convention's protections.

    1. Inadequacies of Other Penal Instruments

      Forced religious conversion is a crime that fits within several legal categories. This multi-categorical nature is not distinct to forced conversions and should not preclude its classification as genocide. Most...

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