Brooklyn Journal of International Law

First Page



Iran is home to an estimated 300,000 members of the Bahá’í faith, a global religion that originated in Iran in the early nineteenth century. Since the faith’s inception, thousands of Bahá’ís have been killed, imprisoned, and tortured. Today, they are unable to attend colleges and universities, hold business licenses, bury their dead, or gather for worship. Since the Islamic Revolution in 1979, the current regime has worked to systemically impede the progress of the Bahá’í community. While hundreds of Bahá’ís have died at the hands of the current regime, the high threshold for bringing a case under the intent prong of Article II of the Genocide Convention (the “Convention”) makes it difficult to prosecute the Iranian government for genocide. As a religious group, the Bahá’í community is protected by the Convention. While the Convention states that genocide can be caused by the deliberate infliction of conditions of life calculated to bring about a group’s physical destruction, this language is restrictive, as it requires the intent to bring about the physical destruction of the group per se. This Note argues that in determining the culpability of Iran’s leadership, it should no longer be necessary to show that the current regime has an explicit plan to cause physical harm to the Bahá’í community. Instead, it should be required to show that there are structural devices in place that could foreseeably lead to its dissolution. This Note will examine the implications of the Convention’s limited and flawed definition, as well as how a broader and more structural definition could resolve the crisis facing the Bahá’í community in Iran. It will then describe the evolution of the substantive approach to human rights that emerged from the international women’s rights movement, as well as the human capabilities approach to rights developed by Amartya Sen and greatly expounded upon by Martha Nussbaum. Under this theory, human beings who do not have access to certain fundamental capabilities, such as the ability to bury their dead or educate their young, may be considered deprived of things that are fundamental to life, and at certain extremes, deprived of life itself. This Note suggests that the Convention be amended to include a two-prong definition of genocide that codifies the human capabilities approach and allows for the prosecution of state structures designed to completely incapacitate targeted groups like the Bahá’ís.