“Mom, they might not look for her if we said she is Aboriginal.” Tears streamed from Kim McPherson’s eyes as she recounted the distressing conversation with her mother on April 29, 2013, when her sister Jennifer went missing. Some days later, police discovered her dismembered remains, scattered at a remote location, off the eastern coast of Vancouver Island. The cruel irony was that Jennifer McPherson’s namesake was her auntie Jennifer Johnston, who had also been murdered, in 1980.
It was now October 16, 2017. Four years had passed, but time had not healed Kim’s terrible wounds. I was in attendance at the third community hearing of the National Inquiry into Murdered and Missing Indigenous Women and Girls in downtown Winnipeg, to express my solidarity and support, and listen to voices like Kim’s.
Sitting in the Ambassador Banquet Room at the Radisson Hotel, the enormity of the pain was at first difficult to fathom. Hundreds of people sat silently in long rows of chairs, under giant crystal chandeliers, listening intensely to speakers — family members of the missing and murdered — in front of the spacious ballroom. On the surface, it seemed like yet another event on the conference circuit that I frequented. But just beneath the illusion of normalcy, an immense grief had gripped the audience. The ceremony was a mourning of irredeemable loss, an incantation of sorrowful words for the healing of shattered souls. “So, we made a decision to just leave [her identity] as Caucasian,” Kim continued, “because we thought nobody would help in the search efforts and take it seriously, because we know how society doesn’t respond to Aboriginal women that go missing.”
Some time later, haunted by what I had heard, I searched the internet for Jennifer’s obituary. I wondered what she meant to those she had left behind. “The light of her eyes shone brightly with her never ending smiles.” That is how her loved ones described her. “She leaves behind to cherish her memory two beautiful daughters, Jessica Cook and Victoria McPherson.” The mention of her children was heartbreaking. There was also Jennifer’s mother Betty, stepfather Mike, father Larry, stepmother Peggy, sisters Kim and Gerri-Lee, brother Pierre, stepsister Gloria, foster sisters Diana and Cheryl, nieces Corley and Mya, nephews Russell, Daniel, Michael, Nathanael and Pierre, and her “special friend” Susan. Behind every victim there is a universe of relations forever destroyed.
Looking at the room full of broken and bereaved people, the reality began to sink in that while most Canadians went about their lives in blissful ignorance, thousands of Indigenous citizens have experienced this same horrible nightmare.
“The fact that this National Inquiry is happening now,” the commission’s final report, released on June 3, says, “doesn’t mean that Indigenous Peoples waited this long to speak up; it means it took this long for Canada to listen.” But are we really listening? There have been important antecedents: the 1991 Aboriginal Justice Inquiry; the 1996 Royal Commission on Aboriginal Peoples; the 2001 Aboriginal Justice Implementation Commission; the 2015 Report of the Truth and Reconciliation Commission of Canada; and now, in 2019, “Reclaiming Power and Place,” the 1,200 page final report of the National Inquiry. Upon its release, it seemed as if the collective cry of our Indigenous compatriots had fallen on deaf ears.
Instead of the anguished testimony of the 2,380 witnesses and the commission’s 231 “calls to justice,” it was the accusation of “a race-based genocide of Indigenous Peoples” which captured the headlines. A torrent of opinions appeared instantly online, either defending or, mostly, contesting the use of this label, questioning the parallels with the Holocaust and Rwanda. What should be an empathic dialogue, a serious search for lasting solutions, has been transformed into a fetishistic debate over the taxonomy of evil — a debate in which polemics have obscured the reality of human suffering.
I wondered how many of the pundits that had rushed to judgment had actually read the report. Admittedly, lecturing is easier than listening, especially if we think there is nothing useful to learn from others. But reconciliation requires a dialogue between two sides. It is already difficult when one side must speak the language of the other. It becomes impossible if the other side won’t even listen. The irony is that language itself is the most successful colonial tool, planting seeds of self-doubt by erasing the mother tongue of the subjugated “other.” That after all was the purpose of the residential schools: “to kill the Indian in the child.” Unless we speak Cree, Inuktitut, Ojibway, or one of the other 60 Indigenous languages in Canada, we must recognize that the burden falls on Indigenous peoples to translate their experience into English (or French) — into terms such as “Colonial Genocide” — so that we can begin to enter their cultural universe.
The multiple meanings of genocide
Words only have meaning in context, and genocide is no exception. It is variously a sociological concept, a legal label, and a mourning metaphor. Whether we agree with the commission’s conclusion on a “race-based genocide” or not, it is essential to understand these different contexts, and what message each attempts to convey.
Genocide is a fusion of the Greek prefix “genos” (meaning race or tribe) and the Latin suffix “cide” (meaning killing). The commission correctly pointed out that when the Polish jurist Raphael Lemkin first introduced the term to describe Nazi atrocities, it had a broader definition than the uninformed observer might assume. Lemkin’s book Axis Rule in Occupied Europe (published in 1944) clarified that beyond immediate destruction by mass killings, genocide signified “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups.” This included the “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”
It is not unreasonable to conclude that Canada’s colonial policies — including the Gradual Civilization Act of 1857, the Gradual Enfranchisement Act of 1869, the Indian Act of 1876, and practices such as dispossession and starvation, confinement to reservations and residential schools — fall within Lemkin’s sociological conception of genocide. The express purpose of the European “civilizing mission” — whether in the Americas, Africa or Asia — was the cultural destruction of those deemed to be “savages;” traditional peoples were routinely sacrificed on the altar of modern “progress.” This explains the commission’s use of the term “Colonial Genocide” in contrast to what it refers to as the “Holocaust prototype.” In adopting this term, it properly distinguished between “a more social versus legalistic” concept of genocide, and noted that today, “fields other than law … examine genocide in different terms.”
The legal definition of genocide raises different considerations. Like any other language, there is no immutable interpretation of law, and experts don’t have a monopoly on either knowledge or meaning. The legal concept of human rights, for instance, has evolved in significant ways through popular movements and historical struggles for justice. There is, however, a boundary between law and politics that cannot be transgressed without robbing law of its normative integrity. For one thing, unlike political slogans, legal conclusions are meant to have precise meanings, and precise consequences, particularly in respect of criminal conduct. A useful example is the distinction between murder and manslaughter. The physical element (actus reus) of both is causing death, but their respective mental elements (mens rea) differ substantially. One requires an intention to kill; the other requires only the intention to cause bodily harm. Other than the stigma attached to each crime, the most significant consequence of this distinction is differential punishment. While manslaughter carries no minimum sentence, the Criminal Code of Canada imposes mandatory life imprisonment for the more serious crime of murder.
Despite its sensational stigma, genocide shares significant similarities with other international crimes. It shares the actus reus of murder, rape, starvation, sterilization, etc. with war crimes and crimes against humanity. Its distinguishing feature is the highly specific mens rea of an intention to destroy a group. It has a very narrow normative function as an aggravated form of crimes against humanity, closely related to the crime of “persecution.” International tribunals have clarified that both are “crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. … While in the case of persecution the discriminatory intent can take multifarious inhumane forms … in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims belong.” Therefore, not every mass-atrocity — however heinous — needs to qualify as genocide in order to be punishable. In fact, despite its popular conception as the “ultimate crime,” genocide does not necessarily result in a heavier punishment than either crimes against humanity or war crimes. Unlike national laws, there is no formal hierarchy of culpable conduct in international criminal law.
What the finding means for Canada
While the 2015 Truth and Reconciliation Commission Report restricted itself to a general finding of past “cultural genocide” in respect of residential schools, the National Inquiry went much further, making a global finding of ongoing genocide. In its Supplementary Report, replete with sophisticated legal arguments, the National Inquiry concluded that: “Canada has breached its international obligations” under the 1948 Genocide Convention and that the “breach will persist as long as genocidal acts continue to occur and destructive polices are maintained.” In arriving at this conclusion, the report noted at the outset “a living interpretation … consistent with the evolution of customary international law,” and emphasized the exclusion of Indigenous and gender perspectives when the convention was negotiated during 1946-48. This set the stage for a blurring of the boundaries between the law as it is (lex lata) and the law as it should be (lex ferenda).
An issue of central importance for the claim of “Colonial Genocide” is the 1947 draft of the convention. Reflecting Lemkin’s original idea, it had included three categories of destruction; namely, physical, biological and cultural. The draft article on “cultural genocide” included “forced transfer of children;” “systematic exile;” “prohibition of the use of the national language;” “systematic destruction of books;” and “systematic destruction of historical or religious monuments.”
Delegates from the Global South such as Egypt supported its inclusion, pointing to the attempt by colonial powers “to substitute their own culture for the ancient one respected by the local population.” China went so far as to maintain that cultural genocide “might be even more harmful than physical or biological genocide, since it worked below the surface and attacked a whole population, attempting to deprive it of its ancestral culture and to destroy its very language.” The Pakistani delegate argued that “cultural genocide represented the end, whereas physical genocide was merely the means. The chief motive of genocide was a blind rage to destroy the ideas, the values and the very soul of a national, racial or religious group, rather than its physical existence.”
Nonetheless, the majority, in particular the European delegates, opposed the draft article. Denmark argued that “it would show a lack of logic and of a sense of proportion to include in the same convention both mass murders in gas chambers and the closing of libraries.” For its part, Canada noted that it was “horrified at the idea of cultural genocide,” but enthusiastically supported a French proposal to delete the draft article, insisting that genocide “should be limited to mass physical destruction of human groups.” The Canadian delegate had in fact been instructed by Ottawa to vote against the convention if that provision was not deleted.
Although cultural genocide was ultimately rejected, the forcible transfer of children was re-introduced by a Greek amendment. Greece had condemned the mass-abduction of an estimated 30,000 children by communists during the 1946-49 Civil War as “genocide.” Given the opposition to cultural genocide, however, it was re-characterized as biological genocide. For example, the United States asserted that “from the point of view of the destruction of a group,” there was no difference “between measures to prevent birth half an hour before the birth and abduction half an hour after the birth.” This presumed a permanent rather than temporary removal of children. Other delegates disagreed, interpreting the provision broadly to encompass situations like the Indigenous residential schools. For example, Venezuela insisted on characterizing forced transfer of children to another group as “cultural genocide” because “they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, [and this] was in practice tantamount to the destruction of their group, whose future depended on that generation of children.”
Given the significance of cultural destruction to its “Colonial Genocide” case, the National Inquiry invoked isolated cases from international jurisprudence to arrive at the conclusion that “genocidal intent encompasses the destruction of a group as a social unit, in addition to physical and biological destruction.” At first glance, this interpretation of the mens rea seems convincing. Unfortunately, it is not supported by the overwhelming weight of legal authority. In its 2015 Genocide Convention (Croatia v Serbia) judgment, the International Court of Justice held that the 1948 Convention “originally envisaged two types of genocide, physical or biological genocide, and cultural genocide, but that this latter concept was eventually dropped.” Similarly, in its 2016 Karadžić judgment, the International Criminal Tribunal for the former Yugoslavia held that genocide prohibits “only the physical and biological destruction of a group, not attacks on cultural or religious property or symbols of the group.” This contemporary case-law is consistent with earlier reports of the UN International Law Commission, from 2001 and 1996, stating that “the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.” It should also be noted that although the first draft of the UN Declaration on the Rights of Indigenous Peoples included the terms “ethnocide” and “cultural genocide” in 1993, it was ultimately rejected in the final draft adopted by the UN General Assembly in 2007.
The commission’s expansive interpretation of the requisite mens rea is followed by the contention that “Canada’s colonial history provides ample evidence of the existence of a genocidal policy … which reflects an intention to destroy Indigenous peoples.” In support of its conclusion, the supplementary report refers inter alia to spreading smallpox, scalping bounties, starvation, killings and medical experiments, from the 1750s to the early 1900s. Unlike the sociological concept, however, the legal concept of genocide does not apply retroactively to historical events, even if the current situation of Indigenous peoples is rooted in colonial injustice. The International Court of Justice clarified in its 2015 judgment that “the duty to punish acts of genocide … was intended to apply to acts taking place in the future and not to be applicable to those which had occurred during the Second World War or at other times in the past.” This makes the exclusive focus on genocide all the more problematic. Had the wider crime of persecution also been considered, the temporal scope could have been possibly stretched from 1948 (i.e. the year in which the UN adopted the Genocide Convention) to 1915, coinciding with the declaration of the Triple Entente during the First World War, denouncing Ottoman Turkey’s massacre of Armenians as “crimes against humanity and civilization.”
Yet another fundamental issue is the commission’s observation that “individual criminal responsibility for international crimes is not a substitute for state responsibility.” The National Inquiry noted that “without excluding the possibility that individuals could be held liable for genocide in Canada,” it only “draws a conclusion on the responsibility of Canada as a state for genocide under international law.” This leaves unaddressed the fact that in principle, state responsibility cannot exist unless identifiable individuals have perpetrated the crime of genocide. Article IV of the Genocide Convention sets out the fundamental obligation to punish persons committing genocide “whether they are constitutionally responsible rulers, public officials or private individuals.” If the genocide argument is to be taken seriously, there would have to be criminal trials, either in Canada or the International Criminal Court at The Hague.
This begs the question of who, if anyone, in Canada should be prosecuted for the alleged ongoing genocide. It is notable that Prime Minister Justin Trudeau accepted that “what happened” (not what is happening) “amounts to genocide,” without specifying whether he was referring to the sociological or legal concept, or the distant rather than recent past. The National Inquiry’s finding has prompted the Secretary-General of the Organization of American States and the UN High Commissioner for Human Rights to call upon Canada to assess its actions “past and present.” But nobody — not even the National Inquiry — is seriously calling for genocide prosecutions.
Looking beyond the language of law
Considering the serious flaws in this legal theory, it must be asked what is gained (or lost) by the insistence on a legal (rather than sociological) accusation of ongoing genocide in Canada. Placing an untenable legal argument at the centre of a divisive debate is a distraction from the concrete steps that must be taken to end violence against Indigenous women. There is considerable sympathy among the Canadian public for this worthy cause. Instead of interpretive overreach, would that moral capital perhaps be better spent by focusing on Canada’s human rights obligations? The prohibition of racial discrimination, protection against sexual and gender-based violence, the right of Indigenous peoples to self-determination; these fundamental norms of international law stand on solid ground. They are not in need of creative lawyering. They simply require implementation.
There is, nonetheless, a deeper dimension to the controversy that cannot be ignored. This brings me to genocide as a mourning metaphor, an acknowledgment of anguish. This context is not about sophisticated legal arguments among experts, but rather how words are experienced emotionally by those that have been wounded and ignored for so long. Such uses of language are fundamentally therapeutic; a means of surfacing suppressed trauma, and transforming it into a coherent cathartic narrative; the reclaiming of a lost humanity. But why genocide? Why should suffering be expressed through the language of legal formalism? Do such arguments inspire either healing for victims, or empathy among bystanders? Or do they enable superficial virtue signalling, a peddling in platitudes creating the illusion of progress?
Twenty-five years ago, the world refused to call the Rwandan atrocities “genocide” and did nothing as a million Tutsi were slaughtered. A decade later, after profuse apologies and much talk on “lessons learned,” the world called the Darfur atrocities “genocide” and still did nothing. Today, the Yazidi and Rohingya join the ranks of victims who receive symbolic recognition instead of effective action. Perhaps our narcissistic consumer culture breeds so much indifference that it takes the g-word’s shock factor to momentarily awaken our conscience. But fixation on this evocative epithet invariably leads to the Oppression Olympics; a contest for validating victimhood in which the gold medal is the genocide label. Surely there must be a better way to connect language with human pain?
The obsession with Lemkin’s conceptual terminology privileges universalizing abstractions over subjective experience and particularized identities. It substitutes the intimate vernacular with a homogenizing foreign vocabulary. In reckoning with past horrors, the Jewish people embraced the Hebrew word “Shoah,” meaning “catastrophe.” The Armenians adopted “Aghed,” also meaning catastrophe. The Ukrainians used “Holodomor” (“death by hunger”) and the Rwandans devised “Itsembabwoko” (“ethnic extermination”). “Colonial Genocide” may be a useful analytic concept, but somehow it seems inadequate, because it fails to capture a more authentic voice. Instead of borrowing from European languages, perhaps there is a word among the Indigenous languages that could be adopted; a word with a specific etymology and linguistic context that non-Indigenous Canadians could learn, to better understand the cultural reality of peoples they know so little about.
It is famously said that a single death is a tragedy, but a thousand deaths is a statistic. As human beings, we are primed to respond to the suffering of identifiable people; people like us, with names and relations, thoughts and emotions. Obsession with abstract concepts and political slogans reduces real people with real stories to a faceless mass; it leaves us disconnected and numb. The tears of Kim McPherson, the profound sorrow in her voice as she spoke of her sister, Jennifer, conveyed more than any label about the immensity of the tragedy in our midst, and what it demands of us as fellow Canadians. The question we must now ask is: genocide or not, do we really care about our Indigenous sisters?