At USA Today, columnist Kirsten Powers writes about the State Department’s apparent reluctance to refer to ISIS’s persecution of Iraqi and Syrian Christians as a genocide. The reluctance is puzzling. According to press reports, the Department is poised to declare a genocide ISIS’s persecution of another religious minority, the Yazidis. If Yazidis are the victims of genocide, she asks, why not Christians? The situation of these two persecuted minorities is quite similar.

Powers makes a very good point. The 1948 Genocide Convention defines “genocide” as, among other things, “deliberately inflicting on” a religious group “conditions of life calculated to bring about its physical destruction in whole or in part.” Obviously, what ISIS is doing to the Yazidis qualifies. So does what ISIS is doing to Christians. ISIS is driving Christians from their homes, seizing their property, and, quite often, killing them in the most horrible ways. How does that not qualify as a genocide?

Apparently, the State Department is hesitating because, unlike Yazidis, Christians have a way out. As “People of the Book” under classical Islamic law—which ISIS has purported to restore in its newly-declared caliphate—Christians can choose to abide by the terms of the Dhimma, the notional contract that governs the treatment of Christians, Jews, and some other minorities. As dhimmis, Christians may remain in the new caliphate as long as they follow the rules—paying the jizya tax, for example, and accepting social subordination. (I detail the dhimmi restrictions ISIS has imposed on the Christian communities of Iraq and Syria here).

As Powers point out, however, on many occasions, ISIS has disregarded the dhimmi rules. Moreover, even at their best, the rules are punishing. The jizya is often set at a level where many Christians cannot pay it. These Christians have no choice but to leave. More fundamentally, how is it acceptable to tell religious minorities that things are comparatively good for them because they can “choose” to accept oppressive and demeaning treatment and manage to survive? Quite obviously, ISIS’s goal is to eliminate these ancient Christian communities. And it is largely succeeding: those Christians who can do so are fleeing. Some experts believe that Christianity will disappear from Iraq and Syria—places where Christians have lived since the religion began—within one or two generations.

Last Friday, a group of Christian leaders, human rights advocates, and scholars sent a letter to Secretary of State John Kerry asking for a meeting on this question, at which they hope to persuade him that Iraqi and Syrian Christians, as well as Yazidis, should be included in any designation of a genocide. (Full disclosure: I am one of the signatories). Secretary Kerry has not yet responded.

Mark Movsesian is the Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion at St. John’s University School of Law. His previous blog posts can be found here.

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