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Decolonizing the International Law on genocide: Canada accepts its atrocious present and the past

SHIVANGI MISRA

CANADA celebrated its National Day on July 1, 2019 – a hundred and fifty two years after it first gained dominion status from its European colonizers. The country experienced settler colonialism when Europeans aggressively took lands from Indigenous peoples, whose presence in North America for centuries predates Canada’s emergence as a dominion in 1867.

Over time, colonizers displaced and eventually greatly outnumbered the Indigenous peoples. Subsequently, the Canadian government’s systemic targeting of Indigenous identity and attempts to merge that identity with the hegemonic western identity has spread all over its political, legal and social history. In its dark past of residential schools (which separated Indigenous children from their families in order to “civilise” them) and systemic police brutality, to taking over land to build gas pipelines, Canada is a long way away from reconciliation.

For the Indigenous community, colonialism has continued for an additional 152 years.

I am not going to explore the different ways the Indigenous groups have been impacted over hundreds of years in this article but it is important to mention that the community continues to be at the receiving end of discrimination and inequality. Indigenous groups suffer from health issues, high rate of incarceration, lower level of education and they belong disproportionately to lower income groups with significant income gaps between the Indigenous groups and the rest of Canada.  Constituting 4.9% of total Canadian population, Indigenous peoples have faced racism, violence and lack of access to quality education and healthcare.

The liberal government in 2015 commissioned a report as a response to Truth and Reconciliation Commission’s Calls to Action. The National Inquiry into Missing and Murdered Indigenous Women and Girls’s (MMWIG) 1200 page final report and recommendations concluded that the experience of Indigenous population of Canada, especially women, girls and 2SLGBTQQIA people (two-spirit, lesbian, gay, bisexual, transsexual, queer, questioning, intersex and asexual) is genocide. The report is the result of almost three years of cross-country public hearings and evidence gathering across Canada. It recognised Indigenous self-determination and self-governance in all areas of Indigenous society and as the best practice.

The National Inquiry into Missing and Murdered Indigenous Women and Girls’s (MMWIG) 1200 page final report and recommendations concluded that the experience of Indigenous population of Canada, especially women, girls and 2SLGBTQQIA people (two-spirit, lesbian, gay, bisexual, transsexual, queer, questioning, intersex and asexual) is genocide. The report is the result of almost three years of cross-country public hearings and evidence gathering across Canada.

While the National Inquiry is not a judicial body, it concluded that there are,

“serious reasons to believe that Canada’s past and current policies, omissions, and actions towards First Nations Peoples, Inuit and Métis amount to genocide, in breach of Canada’s international obligations, triggering its responsibility under international law.”

It acknowledged the race based and gendered genocide with,

“The  violence the  National  Inquiry heard  about  amounts to  a  race-based genocide  of Indigenous  Peoples, including  First  Nations, Inuit  and  Métis, which  especially  targets women, girls, and 2SLGBTQQIA people. This genocide has been empowered by colonial structures, evidenced notably by the Indian Act, the Sixties Scoop, residential schools and breaches of human and Indigenous rights, leading directly to the current increased rates of violence, death, and suicide in Indigenous populations.

The report sheds light on “colonial genocide”, unique from the traditional understanding of the Holocaust prototype. As documented in the Final Report, testimony from family members and survivors of violence spoke about multigenerational and intergenerational trauma and marginalization in the form of poverty, insecure housing or homelessness and barriers to education, employment, health care and cultural support. It speaks about “colonial and patriarchal policies that displaced women from their traditional roles in communities and governance and diminished their status in society, leaving them vulnerable to violence.”

“A decolonising approach aims to resist and undo the forces of colonialism, and to re-establish Indigenous Nationhood. It is rooted in Indigenous values, philosophies, and knowledge systems. It is a way of doing things differently that challenges the colonial influence we live under by making space for marginalized Indigenous perspectives.”

The word genocide invokes images of brutal violence in Rwanda, Armenia, Darfur, Bosnia, Cambodia or Germany. Whereas, Canada’s perception globally is a friendly, non-violent, and welcoming place for immigrants where general politeness is commonplace. In a Forbes 2015 survey, Canada ranked as number one on country reputation scale in terms of standard of living and lifestyle.

The knowledge that it is also a place of active genocide, as per this report, is unsettling information in contrast to the perception and its image, making it, as I would argue, an even more important step towards demystifying the western image. Genocide appears to be acts committed by religiously and ethnically divided countries, and not the west despite their widespread unapologetic colonialism. This report shows the mirror to Canada and is reflection on the West’s own absolution from its past.

Canada has in the past, especially under Stephen Harper’s government apologised for its atrocities against the Indigenous groups. Acknowledgement is a necessary step to rehabilitation and possible reparations. The report is another step to simply understand the situation better, to be able to acknowledge the extent of the crimes and instil it in the national consciousness. Following the report, there has been opposition to the terminology and contest to the report. For it to make sense, we first have to understand the depth of the issue and nuance within the term “genocide”.

The law

The term ‘genocide’ is a creation of international law albeit it’s current usage in historical and cultural context.

Genocide is defined in the Genocide Convention as:

[…] 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.

Statutes of international criminal tribunals have replicated the same definition. The factors that constitute genocide according to international law are not ranked.

The term genocide is a construction of international law, defined and given meaning by international law, courts and usage in law. As per the definition, there is no minimum deaths requirement for acts to be genocidal. There need not be any reduction in population of a particular group, deaths, or physical violence to constitute genocide as per the law on genocide. Canada’s domestic law on genocide, has imported this definition with one alteration that both positive acts and failures to act can constitute genocide. There is still certainly no numerical requirement for deaths. This is counter-intuitive of what the popular understanding of the term has been.

It is true in fact historically that genocide has been identified with large number of killings against a particular group such as in Germany or Rwanda. The public consciousness was built on that knowledge, so much so that perhaps that single aspect of genocide acts as the full life of the term in mainstream knowledge. This discussion does not end with the seemingly benign divide (genocide as per the law vs genocide el general).

The term genocide is a construction of international law, defined and given meaning by international law, courts and usage in law. As per the definition, there is no minimum deaths requirement for acts to be genocidal. There need not be any reduction in population of a particular group, deaths, or physical violence to constitute genocide as per the law on genocide. Canada’s domestic law on genocide, has imported this definition with one alteration that both positive acts and failures to act can constitute genocide.

A substantive amount of engagement space is taken up by it-is-bad-but-not-genocide camp. This argument lies on the premise that the “tendency to apocalypticize every policy discussion surrounding indigeneity now has created a sort of social panic that afflicts much of the intellectual class.” According to senior journalist Jonathan Kay, a vocal member of this camp, “The cheapening of the term “genocide” presents an extreme example of this trend…word once generally reserved for the greatest crimes known to humankind now has been reduced to a facile moral hashtag.” He has gone on, like many others to forward the notion that calling centuries of colonial systemic destruction against a group in Canada, supported by the report, is delegitimizing the concept of genocide.

Repeated comparisons to the number of deaths (going up to three million and more) in Nazi Germany, Rwanda, Bosnia etc push the legally flawed and conceptually weak narrative that the number of deaths is the only symptom of the “crime of all crimes”.

Comparisons to other countries with more number of deaths (as compared to the total number of Indigenous deaths in Canada) on a daily basis does not add any value to the argument, for the same reasons that the number of deaths does not matter, contrary to popular belief, and perpetuated by an ill-informed media. The standards that need to be met for crimes to be classified as genocide are not set by past genocides, but by the legal definition of what will constitute as genocide in the Genocide Convention. It is after all not a societalterm, but a legal term.

The thick of it 

That being said, past atrocities should not be perceived from the legal lens exclusively, and needs to be weighed politically as well. This is also an opportune moment for international law scholars, sociologist and other interested groups to broaden our understanding of what is genocide. Rigid legal terms can flatten social needs and in this case focusing the debate on just that will defeat the purpose. Yes by legal knowledge, it can be genocide but the struggle here is go beyond the law and instil that empathy through removing ignorance in Canadians who do are too hesitant to accept historical injustices.  This can be the moment where we do not simply apply the law to the facts, but realise the significance of the law on genocide.

The attempts at destruction of identity did not happen in a singular event, but in continuous steps over time. Residential schools, replaced by incarceration, replaced by land acquisition and so on. Genocide is a process, which Canada witnessed as per the report. To deny those experiential truths, is to deny their history. Hence it is not simply, about collective responsibility, or industrial sized killings.

Deaths of members of the Indigenous groups occur not only through structural injustices but also through the desire to be a homogenous country with one national identity. The root of racist measures was the desperation of ignoring, erasing and discriminating against other identities. While the treatment by the public might not be of relevance to the legal meaning as is, however to ignore it might take us down the path of ignoring this fact politically.

The National Inquiry into Missing and Murdered Indigenous Women and Girls’s (MMWIG) 1200 page final report and recommendations concluded that the experience of Indigenous population of Canada, especially women, girls and 2SLGBTQQIA people (two-spirit, lesbian, gay, bisexual, transsexual, queer, questioning, intersex and asexual) is genocide. The report is the result of almost three years of cross-country public hearings and evidence gathering across Canada.

The report is a direction towards finding accountability for crimes committed by the state, and also remove the liberal mask of Canada. This report has already sparked the national discussion and will surely address some ignorance on the issue. Even the opinions denying the suitability of the word ‘genocide’ are not denying the accuracy of the racism and the structural inequality.

This is a positive step in other terms, where the former colonies and their subsequent acts on the settled lands are being brought to light. The international law framework was mostly the works of western and European international treaties, conventions and discourses after World War II, bringing justice to the rest of the world. Those same constructions, are now the founding rocks of expanding our narrow understanding to include the crimes of the West.

To decolonize genocide, then, is to decolonize how we comprehend genocide and to reimagine what international law could stand for. Maybe it is possible to dismantle the master’s house, with the master’s tools.

“We accept the finding that this was genocide, and we will move forward to end this ongoing national tragedy.” – Justin Trudeau, 2019.

The “hot take” treatment by the media

Toronto Star hosted a poll following the report asking readers to share their opinion (via a yes-no question) on the report and if they think Canada’s treatment of Indigenous People amounts to genocide. Contesting the report by public opinion is like asking if people think trading humans counted as slavery?

The treatment of experiential truths as a “debate” is not only problematic in terms of respecting historical injustices but also accentuates the narratives of genocide deniers of past and current abuse. Yes, some of the people (as we discussed above) may not hold the opinion that it is genocide, while not denying the existence of extreme discrimination and oppression, however to set up a non-nuanced space online is highly problematic as we do not know the agency of the poll-takers and more importantly masking it as debate delegitimises the issue greatly.

The attempts at destruction of identity did not happen in a singular event, but in continuous steps over time. Residential schools, replaced by incarceration, replaced by land acquisition and so on. Genocide is a process, which Canada witnessed as per the report. To deny those experiential truths, is to deny their history.

The question itself exposed the settler mentality wherein the articulation of the injustice perpetrated by them will be by the oppressors themselves. The popular opinion in this matter has no relevance, since the report is based on the experience of the persons oppressed. It is interesting to see that when we pass the mic to gather opinion, it is to the general majority privileged public, posing questions that contest the experience of the vulnerable. In poor taste Canada.

https://theleaflet.in/decolonizing-the-international-law-on-genocide/

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