Exploring critical issues in religious genocide: case studies of violence in Tibet, Iraq and Gujarat.

• Author: Petit, Robert
• Position: International Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

1. INTRODUCTION

   This article was prepared for a symposium organized by the Frederick K. Cox International Law Center at Case Western Reserve University School of Law entitled "To Prevent and Punish: A Conference Commemorating the Sixtieth Anniversary of the Genocide Convention." (1) Consistent with the general theme of the symposium, the subject matter of this article is prosecuting religious genocide. It will explore the contours of genocide through case studies of religious violence in Tibet, Iraq, and Gujarat.

   Religious genocide appears to be a small part of existing genocide jurisprudence. Most of the well-known genocide trials have focused on racial, national, or ethnic genocide, even when a claim of religious genocide seemed possible. For example, the International Military Tribunal at Nuremberg treated the persecution of the Jews as racial genocide, (2) although it could also have been viewed as religious genocide. (3) In its most famous genocide decision, the International Criminal Tribunal for Yugoslavia (ICTY) found that Bosnian Muslims represented a distinct national group, (4) even as it tacitly acknowledged that the Bosnian Muslims could be a religious group. (5) The International Criminal Tribunal for Rwanda (ICTR) has consistently concluded that the genocide committed in Rwanda was ethnic in nature. (6) In short, criminal cases of religious genocide are quite rare.

   In light of this apparent gap in the jurisprudence, we attempt to explore the key elements of genocide through three case studies of potential religious genocides. The case studies we have chosen are: (1) anti-Buddhist violence in Tibet between 1994 and 2002, (2) anti-Christian violence in Iraq between 2003 and the present, and (3) anti-Muslim violence in the Indian state of Gujarat in February 2002. Obviously, the most important criterion in choosing these case studies is that the victims were targeted because of their religion. (7) Another key concern was how recently the violence occurred. The oldest case study, Tibet, covers a time period that begins in 1994 and ends in 2002. Meanwhile, the religious violence in the most recent case study, Iraq, continues. These case studies present interesting questions in religious genocide, including: How does one define the parts of a targeted group? What does it mean to destroy the group? And, how does one prove genocidal intent?

   The case studies are arranged from the weakest, Tibet, to the strongest, Gujarat. Each allows the exploration of a particular issue. For example, the anti-Buddhist violence in Tibet appears to have been directed largely at the Buddhist monkhood, not at ordinary Tibetan Buddhists. In this sense, it does not look like a traditional genocide case, where the protected group is usually defined geographically. Instead, it looks like an attack on the leaders of Tibetan Buddhism. This case study presents the question of when attacks on the leadership of a group can qualify as genocide against a part of the group.

   The case study of anti-Christian violence in Iraq presents an opportunity to look at what it means to "destroy" a group for purposes of the Genocide Convention. While the Vienna Convention on the Law of Treaties suggests that the term "destroy" should be entitled to its ordinary meaning, a number of courts have embraced a narrow definition of destroy that requires the physical or biological destruction of group members. Recent cases, however, have tended to give destroy a broader meaning. This case study examines the current state of the law on the meaning of "destroy" in the context of anti-Christian violence in Iraq.

   Finally, the case study of anti-Muslim violence in Gujarat focuses on how one proves the necessary genocidal intent. In Gujarat there is evidence of intent that arises from a number of factors, including statements made by the perpetrators, the general political context of the anti-Muslim attacks, and the nature, preparation, and repetition of those attacks. This case study describes how circumstantial evidence can be used to prove genocidal intent. Collectively, these three case studies provide opportunities for the exploration of some of the most difficult legal and evidentiary problems associated with the prosecution of religious genocide.

2. ATTACKS ON BUDDHIST MONKS IN TIBET, 1994-2002

   The occupation of Tibet by the People's Republic of China (PRC or China) has provoked consistent criticism for more than fifty years. The years immediately following China's 1950 invasion were the most brutal. In 1959, the International Commission of Jurists investigated atrocities in Tibet and concluded that the government of China was committing genocide against the people of Tibet. (8) More recently, a Spanish court has begun a criminal investigation into whether the Chinese government committed genocide in Tibet beginning in the 1950s. (9) While the violence no longer reaches the level seen in the 1950s, (10) there are periodic crackdowns on various aspects of Tibetan culture. Tibetans have sometimes referred to efforts to suppress opposition to China's rule as "cultural genocide." (11) The Chinese government denies these accusations. (12)

   One such crackdown appears to have occurred between 1994 and 2002, when the government of the PRC reportedly mistreated, incarcerated, tortured and sometimes killed Buddhist monks and nuns. (13) This section will examine whether China's mistreatment of Tibetan Buddhist monks between 1994 and 2002 would, if substantiated, rise to the level of religious genocide. It will begin with a section on the situation in Tibet, and then discuss the protected status of Buddhist monks under the Genocide Convention. It will conclude with sections on the specific acts that could constitute genocide and the evidence of the intent necessary for a finding of genocide.

   1. Background of China's Rule in Tibet

      Tibet is in Central Asia; China lies to its north and east, while India lies to the west and south. (14) It is integrated into the PRC, but retains a degree of autonomy. China's authority over Tibet is disputed by the Tibetan government-in-exile, which is based in Dharamsala, India, and is led by Tenzin Gyatso, the fourteenth Dalai Lama. (15)

      Tibet has historically been influenced by China, particularly during the eighteenth century, but it effectively enjoyed self-rule between World War I and World War II, even though the Nationalist government of China claimed Tibet as one of its provinces. (16) In 1950, China invaded and occupied Tibet. (17) The Tibetan government delegated full authority to the Dalai Lama, and sent him to India for his protection. From there, he sent a five-member delegation to Beijing representing the Tibetan government. (18) They eventually signed an agreement known as the "17-point Agreement" (19) which allowed the Chinese government to take control of Tibet's foreign affairs and occupy the country. (20) China claims that the delegation had the authority to sign the agreement and that they did so voluntarily. The Tibetan government-in-exile maintains that the delegation, which only had the authority to state the Tibetan position, signed the agreement under duress, including a threat to attack Lhasa, the Tibetan capital. (21) China has ruled Tibet since 1950. (22) One of the first things the government did was begin persecuting Buddhists, killing monks, and destroying monasteries. (23)

   2. China's Hostility Towards Tibetan Buddhism

      China's opposition to religion in Tibet seems to have its roots in the Communist Party of China's (CPC) belief that religion and socialism are incompatible, (24) and its fear that independent religious groups might serve as a focal point for dissatisfaction with the state. (25) The Chinese government tends to view organized religion as a subversive force that is subject to foreign influence and undermines state authority. (26) As a result, China is suspicious of, and generally hostile to, Tibetan Buddhism. (27) Nevertheless, the Chinese government appears to recognize the importance of Buddhism to Tibetan society and has acknowledged that it will not disappear overnight. (28) China has therefore focused on the short-term goal of controlling Tibetan Buddhism and ensuring that it does not represent a threat to the state. (29)

      The CPC appears to have implemented a policy of pressuring Buddhist monks to support the PRC and renounce claims of Tibetan independence. According to reports, this policy has primarily been implemented through the creation of "Patriotic Work Teams." (30) These are teams of laypersons who live in monasteries and provide "patriotic" education to the monks and nuns. The lessons are compulsory, and monks and nuns are tested on material provided by the CPC. It is alleged that Patriotic Work Teams have become permanent features in many monasteries. (31) Two core aspects of this patriotic education require monks and nuns to (1) denounce the Dalai Lama, and (2) accept that Tibet is an inseparable part of China. (32) It appears that the CPC has conflated supporters of the Dalai Lama with the Tibetan separatist movement, and concluded that both are antigovernment. (33)

      A second method of control allegedly utilized by the CPC is the installation of "Democratic Management Committees" which are party-controlled institutions within monasteries that are responsible for religious affairs, study, and finances. (34) The CPC has used the Democratic Management Committees to limit the number of monks allowed in monasteries. (35) There are numerous examples of monks and nuns being forcibly defrocked or forced to leave monasteries. (36)

      The PRC has also allegedly tried to control the appointment of senior Buddhist leaders in an attempt to place supporters of the CPC in the Buddhist hierarchy. Tibetan Buddhists believe that their primary religious leaders reincarnate upon death. Traditionally, senior monks undertake the searches for the most important reincarnated religious figures...