chapter one
Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
I’m pretty sure that their legal thinkers would have been well aware of the fact that if they simply had adopted the convention into Canadian law that everything they did after the convention would have rendered them culpable to a claim of genocide. Anything they did before the convention, they might have been able to free themselves and argue that they were not subject to the convention because it didn’t exist in law before then.
– Senator Murray Sinclair on Canada’s restrictive definition of genocide in the Criminal Code (2017)1
In June 2012, I drove a Hertz rental car, a white Chevy Malibu, up Broad Street and then along the flat ribbon of Highway 11 from Regina to Saskatoon to attend the TRC’s Saskatchewan National Event. It was not my first National Event, but it was the first in my home province, a province that included twenty-two residential schools. Saskatoon was similar to other National Events in its careful planning, crowds of people, including large numbers of Survivors, health support workers, and church officials and volunteers. It was also similar in the frequent invocation of genocide by Survivors. An understandably emotional Ted Quewezance, the former chief of the Keeseekoose First Nation, said it plainly during a Commissioner’s Sharing Panel: “This is genocide, Mr. Commissioner. … We, as little boys and girls, lost our innocence. … We lost our lives, our identity, our language, our culture and our family.”2
Most Survivors with whom I have spoken have a clear understanding of what genocide means, and many do not hesitate to apply that understanding to their experiences. In late 2012, I became one of many academic consultants for the TRC; in my case, I had the responsibility to write a draft chapter on genocide for the commissioners to consider for their Final Report. While my work for them was confidential, this book draws in places on that research, while also reflecting the influx of much new information since that time.
Legal theorist William Schabas, who has spent many decades writing on genocide and working on war crimes tribunals, puts the matter starkly: “In any hierarchy, something must sit at the top. The crime of genocide belongs at the apex of the pyramid.”3 This chapter focuses primarily on the UN Genocide Convention of 1948 and how genocide is officially defined in international and domestic law. In the next chapter, I will argue that the convention is a far-from-ideal lens through which to make sense of genocide against Indigenous peoples as part of colonization, given that the legal definition is intimately tied to state power, and that states (some of whom were committing genocide) have exerted control over how genocide is defined, both internationally and domestically.
In this book, I use the terms legalist and pluralist. The first refers to those who centre their understandings of genocide on the UN convention, while those in the second group may or may not use the convention as a basis of analysis, and critically explore the problems behind its creation and the groups it actively excludes. Legalists tend to focus on state agency and anchor their understanding of genocide within a Holocaust paradigm. Pluralists, by contrast, are far less focused on states and political objectives and are more interested in the genocidal impulses and social forces within a given society. They may also seek to significantly redefine what genocide means and should mean.4
This chapter will focus primarily on legalist means of defining genocide, with the next chapter highlighting aspects of the pluralist turn and what it means for understanding colonial genocides. Legalist scholars, who pioneered genocide studies, were influenced primarily by the Jewish Holocaust and the Armenian genocide. Genocide theorist Alex Hinton has observed that the Holocaust constitutes the prototype of what most people think genocide looks like. With it, Rwanda and Armenia figure as the “triad,” followed by a series of “core” genocides of the twentieth century, a “second circle,” a “periphery,” and “forgotten genocides.”5 This triad represents uncontroversial cases for the applicability of the Genocide Convention. These are deliberately planned mass murders on a grand scale, in the context of an international or interstate war, with an obviously racist perpetrator using its full range of bureaucratic and military instruments to affect the annihilation of a relatively defenceless minority population, who have been actively and publicly demonized through propaganda.
Indigenous genocides in settler colonial states do not always fit this standard view of what “real” genocide should look like. Often, there are no international or localized wars taking place. One or more groups are certainly targeted by the state, but settler populations, animated by racist sentiments, may play a larger role in the unfolding violence. Their racism might be overt or even unconscious, merely an assumed understanding of what is desirable and what is not. The targets are often numerous groups who are artificially lumped together because a colonizer, usually European, has assumed control of an expanse of territory that encompasses them all. Genocide can consist of a perpetrator literally creating-by-identifying a group that never existed before, then seeking its destruction at the very same time.
Raphael Lemkin’s Neologism
Born in 1900, Polish Jewish legal theorist Raphael Lemkin coined the term genocide in 1944 and, through dogged persistence, laid the foundation for the UN Genocide Convention only four years later. There is a certain tragic quality to Lemkin, a pale, balding, bespectacled man, forever, it seems, down on his financial luck, living hand to mouth in the fleabag hotels of New York, yet driven to seek justice for oppressed peoples in the world. He was raised in an atmosphere of racial violence and poverty, where anti-Semitic pogroms were not uncommon. His interest in law was kindled by a sense of needing to right injustices, and he was particularly taken by state crimes against minorities such as Armenians and Jews. Governments, it seemed, had legal impunity to massacre their own populations without any international consequences, while members of minority groups striking back often felt the full brunt of domestic law.
Developing a legal framework for the protection of minority populations was a central preoccupation for Lemkin, and it grew all the more pressing as Nazi Germany prepared to invade Poland in 1939. Lemkin fled to Sweden that year, eventually making his way to the United States, where he later taught at Duke and Yale Universities. Forty-nine members of Lemkin’s family stayed in Poland, and they were consequently shipped off to the Treblinka death camp and gassed in 1943. During his time in Sweden, Lemkin penned his magnum opus, Axis Rule in Occupied Europe, offering a comprehensive overview of Nazi policies in the lands they conquered. In trying to make sense of the horrific events swirling around him, Lemkin combined the Greek word for “tribe” or “race” (genos) and the Latin suffix cide, used in words such as homicide and fratricide.
What stands out prominently is how broadly Lemkin applied his new term to a wide range of crimes. Genocide, he observed, was “a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves.” Yet killing was not crucial, and as such, “The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”6 Indeed, killing marked only the final stage of genocide, and Lemkin was clear that “the machine gun” was often “a last resort” instead of the primary means of destruction.7
The fundamentally tragic element of genocide was that each culture and group had something unique to offer to humanity as a whole. Lemkin observed in 1946:
Our whole heritage is a product of the contributions of all nations. We can best understand this when we realize how impoverished our culture would be if the peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich.8
Culture was the bedrock from which these people and ideas flourished. Contributions might be seen in two primary ways. First, the group, by virtue of its existence, provided an intrinsic service to its members, who wished to belong to the group and perpetuate its identity. At a second level, the group contributed certain extrinsic functions, acting as an incubator for talent that enriched not only the group but the wider human population as well.
Eventually basing himself in New York near the fledgling United Nations, Lemkin worked tirelessly to have genocide adopted as a crime in international law. His broad-based World Movement to Outlaw Genocide lobbied UN member states to have a genocide convention drafted into law. Behind the scenes, he was an adviser to the secretary general, and he took to occupying unused offices at the UN as a means of cajoling, badgering, and flattering state delegations, often in equal measure.
In late 1946, the UN General Assembly met for the first time, and Lemkin worked with India, Cuba, and Panama on a genocide resolution, which was passed in December. Lemkin and two other legal theorists then worked with the UN Secretariat to create a draft text, consequently revised by a committee formed by the Economic and Social Council, then followed in 1948 by discussions and further refinement by state delegations at the Sixth Committee of the General Assembly. By late 1948, the final text was submitted to the General Assembly, which unanimously adopted it.
There are differences between the 1947 and 1948 drafts, and they are of crucial importance to understanding how Indigenous genocides are often ignored in international law. In particular, the 1947 draft envisaged genocide in three forms: physical, biological, and cultural. Of these, it saw cultural genocide as an integral component of genocide, as Lemkin outlined in June 1947:
National, racial or religious groups do not exist only physically. Their main characteristics lie within the provinces of spirit and culture. If one destroys these valuable elements of their life, members of such groups are reduced to the stage of robots. Their contribution to world civilization ceases.9
For Lemkin, there was something special about groups that inherited cultural, linguistic, religious, and/or other traits from their ancestors and passed them down to succeeding generations. A human group was to him “a living entity with body and soul,” whose destruction would leave “a vacuum in human society.” He reasoned, “Our whole cultural heritage is the product of the contributions of all peoples, races and creeds.”10 For Lemkin, it was never central to the definition of genocide that members of a group be targeted with death because the key issue was the group’s ability to continue its existence into the future.
The original May 1947 draft included cultural genocide as one of its three aspects. While Lemkin saw cultural genocide as another type of genocide alongside the other forms, the process of codification separated out cultural genocide and described five methods of destroying the specific characteristics of a group:
(a) forcible transfer of children to another human group; or
(b) forced and systematic exile of individuals representing the culture of a group; or
(c) prohibition of the use of the national language even in private intercourse; or
(d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or
(e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.11
Of these, only part (a) survived the vote of the Sixth Committee of the General Assembly and eventually made it into the final draft. Lemkin viewed this as a personal failure, lamenting, “It meant the destruction of the cultural pattern of a group, such as the language, the traditions, the monuments, archives, libraries, churches. In brief: the shrines of the soul of a nation. But there was not enough support for this idea in the Committee. … So with a heavy heart I decided not to press for it.”12 The excision of cultural genocide is significant for those of us trying to interpret Indigenous genocides in settler colonial contexts, given that settler and colonial states were committing many of the above acts, while often at the very same time deliberating how genocide should be interpreted in international law. The final draft of the convention defined genocide as follows:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(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) Forcibly transferring children of the group to another group.
In the remainder of this chapter, I review several salient aspects of genocide in international law, using the convention and later international case law to help situate my analysis. Legal decisions pertinent to this analysis include definitions and findings from the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), all of which have helped refine the UN definition.
Who or What Can Be Charged with Genocide?
While Lemkin was clearly interested in the fate of human groups as groups, his focus on collective responsibility did not make it into the convention. While sub-state units such as the National Socialist German Workers’ Party could be disbanded for their role in genocide, the state itself could escape such accusations and would retain its sovereignty, whatever actions were taken in its name or on its behalf. Instead, individuals would be charged with genocide, while states could continue their existence, although potentially with a change of government. This individual focus is obvious throughout the convention. Article 4 states that “Persons committing genocide or any of the other acts enumerated in article III shall be punished.” Article 5 obliges contracting parties to “provide effective penalties for persons guilty of genocide,” while Article 6 outlines the procedures for trying “Persons charged with genocide or any of the other acts.”13 This raises important issues, such as those the TRC raised in 2015, when it argued that cultural genocide had been committed. Had it made a case for genocide under international law, the state itself would not be liable for a genocide prosecution. Rather, individuals, most of whom were long dead, would have been the targets of any legal action.
International Case Law and Key Elements of the Crime of Genocide
At the top of the definition of genocide is the chapeau (French for “hat”), which lays out the ground rules for interpreting crimes. Proving genocide in international law is uniquely difficult because the legal bar is set extremely high, at the level of a specific intent (in Latin, dolus specialis) to “destroy, in whole or in part, an identifiable group of persons.” Under the UNGC, general intent is insufficient. A group’s destruction, in whole or in part, must be clearly and explicitly sought by the perpetrators. The Holocaust set a near-impossible benchmark for the burden of proof, given that we have the minutes of the 1942 Wannsee Conference, which set out plans for the murder of eleven million European Jews in thirty-five regions. To this we can add an enormous number of supporting documents outlining the goals and scope of Nazi plans. This unique situation is not replicated in other cases, and it was largely a fluke of history that the Wannsee minutes, owned by Foreign Ministry official Martin Luther, were discovered at all. Given that a smoking gun or “direct evidence of genocidal intent” is rare, the ICTY Trial Chambers in the 2016 trial of Bosnian Serb President Radovan Karadžić concluded that intent could instead be “inferred from all the facts and circumstances.” The judges concluded that one could, therefore, analyse such factors as “the general context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy.” Further, “Display of intent through public speeches or in meetings may also support an inference as to the requisite specific intent.”14
Additionally, and curiously, genocide does not require a specific motive, meaning that while a perpetrator must intend to destroy the group “as such,” genocide need not be the key motivation at all. A 2001 Appeals Chamber decision from the ICTY helps clarify this somewhat counterintuitive reality: “‘The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power.’”15 Genocide scholar Ben Kiernan explains that one may interpret genocide as “a means, rather than an end it itself.” He expands on this concept:
Many perpetrators bent on another purpose – such as forcing the surrender, dispossession, or departure of a victim group – have threatened genocide, committing it only when the threat alone failed to achieve those goals, or desisting once they are fulfilled.16
While prosecutors must prove that the perpetrators set out deliberately to commit genocide, it does not really matter why they want to commit the crime or even whether this was the first option. It could have been the final option after the perpetrators attempted a range of other horrific policies. Indeed, the perpetrators do not have to have an existential hatred of a group of people to seek their destruction. They could, for example, be after the group’s land or other resources – the group might be perceived to be simply “in the way” of their vision of the future.
Negligence and Omission
It is important for us to distinguish between omission and negligence (what we might call “extreme carelessness”). As the ICTR argued in Akayesu, a person cannot be charged with genocide in a situation “where he did not act knowingly, and even where he should have had such knowledge.”17 Negligence, however, is distinct from omission, which is covered by the UNGC. Schabas observes in a passage worth citing at length:
An individual may intentionally omit to perform an act, thereby participating in a result. Where the result is an act of genocide, the individual may participate with the required level of intent. Omission is not an issue of intent so much as one addressing the material element of the crime. Depending on the circumstances, an omission may occur intentionally, although it may also be the result of negligence.18
This is particularly relevant when we are discussing Article 2(b). In this case, omission might involve someone “inflict[ing] conditions of life on a group by failing to provide it with essentials for survival.” Here, “The crime is committed by omitting to take action, rather than by taking action. Obviously, such an act can be committed with the specific intent to destroy the group.”19 This distinction brings to mind Daschuk’s history of the colonization of the Plains, which documents the deliberate use of starvation by the federal government against Indigenous peoples to ensure their compliance. This is also an important distinction when we examine the negligence of the federal government in the IRS system, by allowing disease to spread unchecked, and by laying the basis for the widespread malnourishment of children. According to the UNGC, the defence that no one knew, or did not understand, the longer-term ramifications is insufficient to evade responsibility.
“In Part”
No tribunal has ever provided us with a clear percentage for “in part.” Most international case law is deliberately vague so as not to embolden would-be perpetrators to advance to the red line, but not cross it. Noting that the Nazis did not realistically intend to destroy all Jews, but only those in Europe, and that the Hutu extremists in Rwanda sought to kill Tutsis only within Rwanda, the ICTR Appeals Chamber said, “The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can – in combination with other factors – inform the analysis.”20 The ICTY in the Krstić Appeal (2004) concluded that “in part” must represent “a substantial part of that group”; the proportion targeted “must be significant enough to have an impact on the group as a whole.”21 As I argue in chapter 3, the number of Indigenous children targeted with residential schooling fulfils the in-part criteria and is somewhat larger than the proportion of the group targeted in the genocide of Bosnian Muslims in 1995 and larger than the percentage of Aboriginal children taken in Australia as part of the Stolen Generations.22
Elements of Article 2
The most obvious form of genocide for those unfamiliar with the UNGC is “Killing members of the group.” As I will discuss in regard to the IRS system, a finding of genocide as Article 2(a) is complicated by the fact that it is not clear how many children died or were murdered and what were the intentions behind the deaths.
“Causing Serious Bodily or Mental Harm to Members of the Group”
This is the second element of Article 2, and international case law has been very useful in defining what these elements mean in practice. In Gacumbitsi, the ICTR defined serious bodily harm as “any form of physical harm or act that causes serious bodily injury to the victim, such as torture and sexual violence.” However, this harm need not be “irremediable,” and the Trial Chambers outlined that “serious mental harm can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim.”23 More recently, the Trial Chambers in Karadžić made clear that serious bodily or mental harm must result “in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.” The Karadžić decision also provides some examples of what this harm might include – that is, “torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or serious injury to the external or internal organs of members of the group.”24
“Deliberately Inflicting on the Group Conditions of Life …”
Here, the ICTR’s Akayesu judgment has become a standard for interpreting how these conditions should be understood. The Trial Chambers clarified that Article 2(c) “should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.” A perpetrator’s actions can include “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.”25 Similarly, the Trial Chambers in Karadžić was clear that Article 2(c) could be understood as “the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.”26
“Forcibly Transferring Children of the Group to Another Group”
Without doubt, this is the most contentious element of the UNGC and also the most relevant for Canada. Schabas is a notable critic of treating forcible transfer as genocide, and he observes that Article 2(e) was included “almost as an afterthought, with little substantive debate or consideration.”27 In other words, while it does technically count as genocide, it really should not. In later chapters, I will discuss how Schabas’s misgivings reflect “common sense” views about what genocide should mean in mainstream settler society. While politicking removed cultural genocide from the convention, forcible transfer was returned by the Greek delegation and was the only part of the cultural genocide section to be included.
In parting company with Schabas in my support of 2(e), I am on solid ground, given that Lemkin always saw cultural genocide as being a form of biological genocide. This he articulated in 1951, when he posited that “genocide can be committed either by destroying the group now or by preventing it from bearing children or keeping its offspring.”28 He further responded to the question, “Can genocide be committed by kidnapping children?” by stating emphatically, “The answer is yes!” He went on to provide the examples of Genghis Khan abducting European children in a policy of “tartarization,” the Ottoman Empire’s abduction of Greek children, and the abduction of Greek children in 1948 by communist guerrillas. Kidnapping, he argued, was certainly a form of biological genocide in that, “From the point of view of genocide or the destruction of a human group, there is little difference between direct killings and such techniques which, like a time-bomb, destroy by delayed action.”29
An analysis of Lemkin’s voluminous correspondence confirms that he consistently upheld forcible transfer as real genocide. For example, in a draft “Memorandum on Action against Genocide” from late 1949, Lemkin wrote that genocide could be accomplished by “stealing children so that the continuity of the group as such is disrupted.”30 In a letter on how women’s organizations could promote ratification, Lemkin offered, “Breaking up of families is a technic of genocide,” and “Stealing of children is a technic of genocide.”31
The ICTY in Blagojević & Jokić reflected Lemkin in concluding that forcible transfer can lead to the physical destruction of a group, reasoning that “the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself.” It concluded that “the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was.”32 In defining what force means, the Rome Statute of the ICC concluded that this “may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.”33 All this is relevant to the IRS system, where we can observe both overt force deployed by the state and its agents as well as parents and guardians feeling under threat to surrender their children.
Canada’s Excessively Narrow Definition of Genocide
Canada’s role in the UNGC process was not benign, and our contribution, as outlined in the Travaux Préparatoires (the lengthy, two-volume discussion of the minutiae of the UNGC’s passage), was to actively exclude cultural genocide, while at the same time stressing the English and French heritage of the country. For example, the minutes described how one of the Canadian delegates, Hugues Lapointe, rejected cultural genocide, but it then paraphrased him: “The people of his country were deeply attached to their cultural heritage, which was made up mainly of a combination of Anglo-Saxon and French elements, and they would strongly oppose any attempt to undermine the influence of those two cultures in Canada, as they would oppose any similar attempts in any other part of the world.”34 Lapointe’s narrow conception of Canada as the arena for English-French political negotiations signally ignored Indigenous peoples and demonstrated a disturbing irony.
Stephens, another Canadian delegate (unfortunately, his first name is unrecorded), saw no reason for Canada to go beyond including physical and biological genocide given that his was “a country with two main and abiding cultural traditions, and with a great variety of minority groups.” Painting a narrow picture, the Travaux minutes recall, “He [Stevens] knew of no country where the government, and the people generally, were more concerned to ensure the preservation of the culture, language or religion of minority groups.”35 Canada’s federal government was certainly on the same page regarding cultural genocide, and in July 1948, Louis St. Laurent, prime minister and secretary of state for external affairs, sent a telegram to his delegation with clear instructions: “You should support or initiate any move for the deletion of Article three on ‘Cultural’ Genocide. If this move [is] not successful, you should vote against Article three and if necessary, against the Convention.”36
Lester Pearson, who was secretary of state for external affairs from 1948 to 1957, before becoming prime minister in 1963, also took an active role in reducing the ambit of the UNGC to just the first two elements of Article 2. At first, he had no interest in having the convention incorporated into Canadian law, arguing, “I do not think any legislation is ‘necessary’ inasmuch as I cannot conceive of any act of commission or omission occurring in Canada as falling within the definition of the crime of genocide contained in article II of the convention, that would not be covered by the relevant section of the criminal code.”37
In early 1964, a private member’s bill was introduced in Parliament, which did not succeed beyond second reading, but nevertheless led to a parliamentary committee to examine whether the full UNGC should be incorporated into Canadian law. In 1966, the committee advised the government that only Articles 2(a) and (b) should count as genocide. In particular, forcible transfer was seen as a measure “intended to cover certain historical incidents in Europe that have little essential relevance to Canada where mass transfers of children to another group are unknown.”38 When questioned why some aspects of the UNGC were to be excluded, Maxwell Cohen, chair of the committee, replied, “We thought they were not relevant to Canadian life and factual needs.”39 Much of this book refutes that contention.
This narrow version of the convention was incorporated into domestic law in 1970, with the result that our Criminal Code, in section 318, lists only Articles 2(a) and (b) as genocide. This definition has remained more or less unchanged since that time, with the notable exception of updates on the nature of the “identifiable group.” An amendment in June 2016 added “mental or physical disability” to the list of groups, previously defined as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.”40 These changes demonstrate a selective largesse on the part of the federal government to create a more “inclusive” definition of who can suffer from genocide – ironically, in the general context of excluding two-thirds of the actual crimes from being recognized or liable for prosecution. In other words, more groups are protected, but from fewer crimes.
There is, however, some ambiguity about whether Canadian law recognizes the full convention in other government legislation. For example, in 2000, Parliament passed the Crimes Against Humanity and War Crimes Act (CAHWCA), implementing the 1998 Rome Statute of the International Criminal Court. Of interest here is the fact that the CAHWCA gives the attorney general the authority to criminally prosecute citizens and non-citizens in domestic courts for committing genocide, either in Canada or abroad. Genocide is defined in this confusing, clause-laden passage as
an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.41
In practice, Canadian courts have not recognized the retroactivity or the full definition of genocide, which has meant that Indigenous peoples have not found the settler legal system particularly useful. Senator Sinclair outlines this particular problem in the interview quotation that opens this chapter. In 2005, in Malboeuf v. Saskatchewan, Indigenous plaintiffs filed civil action over abuses at residential schools, alleging that the Canadian government had contravened Article 2(e) when it forced “the Plaintiff and other children of First Nations heritage … to be systemically assimilated into white society and in pursuance of that plan, they were forced to attend school and contact with their families was restricted. Their culture and language were taken from them with sadistic punishment and practices.” Lawyers for the government of Saskatchewan countered: “As the events giving rise to the claim pre-date the adoption of the Convention, the Government submits that it is irrelevant to the claim and the entire paragraph should be struck.”42 The court agreed with the government, striking out any references to the UNGC.
In a second case, Re Residential Schools, a Saskatchewan court struck down claims of genocide, focusing on the narrow definition in the Criminal Code. In this case, the plaintiffs were not after financial compensation, but wanted a declaration from the court that the IRS system had contravened the UNGC. The government, as defendant, countered by arguing that since the only legislation in Canada prohibiting genocide was in the Criminal Code, which “refers only to the physical destruction of peoples and not ‘cultural genocide,’” the plaintiffs had no case.43 The court sided with the government, and ruled that it lacked “the jurisdiction to award a declaratory order on the basis of a non-legal or political code of conduct.”44
Is the act of narrowing the definition of genocide itself a breach of international law? Nêhiyaw legal theorist Tamara Starblanket has argued that Canada violated Article 18 of the 1969 Vienna Convention on the Law of Treaties when it failed to incorporate the full UNGC into the Criminal Code. The government did not have the right to pick and choose sections of the UNGC to include or exclude in domestic law. She puts it this way:
The significance of Article 18 to the legal question is that states should not be engaging in possible acts of genocide prior to entering into a treaty on genocide and then continue with genocidal conduct after the treaty is acceded to by the state. … It is well established that genocide is a norm of customary international law and most recently a principle of jus cogens. A state cannot pardon itself of criminal conduct by creating loopholes internationally and domestically.45
Starblanket’s objective, as I understand it, is to see whether Canada can be held legally liable for purposefully narrowing its understanding of genocide domestically at a time when it was committing genocide. Should Canada be found to be in violation of the Vienna Convention, and given the state-centric nature of the international legal system, it is not clear what would happen next. The more cynical students of politics and law will not be surprised if little happens. The international legal system is composed of sovereign states, and while the case can be made that Canada should have incorporated the full definition, no other state has chosen to call Canada to account on this matter. Indeed, Canada is one of those rare Western settler states that ratified the UNGC early on and then incorporated it (albeit incompletely) into its domestic criminal legislation. The United States did nothing until the 1980s, Australia only in 2004.
Cultural Genocide
As mentioned previously, international law does not recognize cultural genocide, which is precisely why the TRC, with its restrictive post-judicial mandate, could claim that Canada had committed something that was not considered a crime in domestic law. Indeed, Canada played a key role in eliminating this aspect of the Genocide Convention, and the Travaux Préparatoires provides several examples of European and settler colonial delegations volubly backing off from endorsing cultural genocide. The French delegation advanced a now familiar objection – that “some of the acts which it has proposed to include in the concept of cultural genocide might have a lawful basis” and that, therefore, the proposed convention could “incriminate States exercising their powers in a normal way.”46
Similarly, the US delegation averred that genocide “should be limited to barbarous acts committed against individual[s],” while cultural genocide, it argued, should be “dealt with in connection with the question of the protection of minorities.”47 The Americans also raised objections to the words “in part,” arguing instead that, to trigger the convention, genocide must be focused on the entire group. This objection seems to have arisen out of fears in the US Senate that the frequent lynching by white racists of African Americans could qualify as genocide. US delegates worried that “sporadic outbreaks against the Negro population” might be seen as genocide.48 The British delegation reported to the Foreign Office that the Americans were “afraid of accusations which may be made against them as a government in respect to the negro and Red Indian populations of the United States.”49
Had decolonization been more advanced in the late 1940s, cultural genocide might have been retained as part of the UNGC, although it is also possible that the major economic and political players might never have agreed to support it. The Canadian, French, and US delegations who spearheaded opposition to cultural genocide were, as Elisa Novic recently noted, “involved in widespread campaigns of colonization to conquer territories already inhabited by other peoples.”50 Beyond this hypothetical proposition, it is certainly true that developing countries and Indigenous peoples were largely ignored. Delegates from newly independent countries and the developing world – including Egypt, China, and Pakistan – were more inclined to support the inclusion of cultural genocide. This was not coincidental as cultural genocide was often a vehicle of colonialism and settler colonialism.
Indeed, when Indigenous peoples had the chance to return cultural genocide to international law, they tried to do so. In the 1993 draft of the UNDRIP, Article 7 introduced “ethnocide” and “cultural genocide,” which were defined as
(a) Any action which has the aim or effect of depriving [Indigenous peoples] of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures; (e) Any form of propaganda directed against them.51
These comprehensive definitions were removed when the declaration was put to a vote at the General Assembly in 2007, largely because states worried about their potential outcomes. Currently, genocide receives only a brief mention in Article 7(2): “Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.”52 Note that forcible transfer figures prominently in this definition.
Conclusions
I have designed this chapter to highlight those elements of the UNGC that are relevant to a discussion of genocide in the IRS system and in the Sixties Scoop. Raphael Lemkin’s original conception of genocide was fairly broad and could indeed cover crimes in colonial and settler colonial contexts. However, as genocide moved from an academic term to being legally codified, the definition narrowed as the self-interest of the drafting states became paramount. On the other hand, as I will discuss in the next chapter, Lemkin’s understanding of genocide was undeniably Eurocentric, focusing on European conceptions of how a group was constituted, how it expressed and practised its identity, and how it might be dissolved. Further, Lemkin needed to negotiate with some of the very states engaged in genocide during the drafting of the convention, including Canada and the United States, to turn his idea into law.