On Oct. 27, 2022 my MP, Leah Gazan (NDP), presented a motion in the House of Commons to have the Indian Residential Schools recognized as a genocide (a real genocide and not just the rhetorical one of culture). Coincidentally, on that same day, the Dorchester Review published an essay I co-wrote with Nina Greene on why the International Criminal Court (ICC) won’t be prosecuting anyone from Canada for genocide.
Disturbingly the House of Commons passed Gazan’s motion unanimously. There has been no trial for any Canadian anywhere on the crime of genocide so there’s a basic problem of justice here. Can parliamentarians pronounce a guilty verdict when no court has? Of course, readers will recall the Pope saying the schools were a genocide but the point remains: does the Pope’s judgment replace that of a court of law?
If the ICC won’t prosecute any Canadian for this alleged crime of genocide, how can justice be done? Are we left with trying the case in the court of public opinion as an approximation of due process?
First, it is important to ask about daring to defend Canada against the charge of genocide. There are some scholars who consider such contention to be ‘denialism.’ If scholars like Sean Carleton were intellectually secure about their arguments, why would they be fearful todebate any of the skeptics he defines as ‘denialists’? However zealously they might regard their moral authority in condemning Canada, Canada, like any person accused of a crime, is entitled to a presumption of innocence. In seeking justice, they cannot deny justice as the ultimate goal.
Gazan’s motion states that Canada is in violation of Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide. The critical test in reaching a conviction for genocide is proving the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group…..”
This ersatz prosecution fails on this point because where is the genocidal intent in educating a people? Educating someone presupposes their continued existence. In the entirety of the IRS history no more than a third of eligible students attended residential schools, and the ratio was often much lower. Where is the intent to destroy in a programme that targeted less than the majority?
Since Gazan argued that Canada was in breach of Article II and she did not mention the specific clauses of that article, it is reasonable to infer that she means that Canada violated all five of the clauses.
The first clause is killing members of the group. Although the Truth and Reconciliation Commission found no substantial evidence of a single homicide at any of the schools throughout their entire period of operation, the reported discovery of unmarked graves at former schools has, nevertheless, inspired some people to presume these are confirmed victims of mass murder. To date no such graves have been confirmed by excavation and analyes so, as yet, there isn’t a single body exhumed that has been forensically examined to determine the cause of death.
The second clause is causing serious bodily or mental harm to members of a group. What is serious bodily or mental harm? Is it strapping students? No. Is it taking away someone’s favourite shirt? No. There are some lurid claims including the use of a homemade electric chair, but these have yet to be proven as anything more than apocrypha or confabulation.
Harsh as the treatment of students may have been, such acts by themselves do not prove genocide if there is no intent to destroy people.
The third clause is deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part. In the context of the IRS this is usually argued to have happened in the way the school administration handled students with infectious diseases. It would have to be shown that schools routinely placed infected children with other students in order to infect those students and thereby cause a number of them to perish. In fact, there is considerable evidence showing that the schools sought to isolate infected students as much as possible and sanitary conditions were improved as time, funding, and technology allowed.
The fourth clause is imposing measures to prevent births within the group. This would include forced sterilization and abortions. What IRS sterilized its students? Considering that a large proportion of the schools were run by Roman Catholic orders, it strains credulity to believe a faith known for its opposition to even contraception would contradict one of itsr main tenets to conduct forced sterilizations and abortions. Bear in mind that residential schools were often located on reserves; how likely is it that a sterilized girl wouldn’t have mentioned her experience to a parent?
The final clause, forcibly transferring children of the group to another group, is most often cited by proponents of the genocide claim. This clause was drafted by the UN in response to the Nazi practice of abducting Aryan-looking children in the countries they occupied and sending them to stay with ethnic German families. Thousands of Polish and Ukrainian children are believed to have been permanently removed from their natural families and homes.
This clause presupposes the transfer must be intended to be permanent and there is also a presumption of racial similarity between groups. Permanent transfer was never the intention of the IRS because like any school, graduation was expected, and students were free to return to their homes thereafter. As well, students were often allowed to go home on weekends, for Christmas holidays, and summer breaks.
It is often argued that assimilation was a type of permanent transfer between groups since a student’s culture was stolen and a ‘white’ culture instilled in its place. Assimilation and genocide are opposing processes. Genocide typically requires dehumanizing the target group whereas making someone more like you humanizes them. In fact, assimilating someone presupposes they will continue to live among your people.
The notion that cultural loss was an objective of the schools is specious because, even if any school had such a policy, there were no efforts to enforce that policy outside of the school. Why wouldn’t students have their culture restored once they returned home for holidays or after graduation?
Trying to see cultural loss as an instrument of genocide is very problematic for the would-be prosecutors because most of the residential schools were denominational. Most of the schools were Roman Catholic, Anglican, Methodist, etc. Determining the school a student attended depended on the denomination their parents belonged to, meaning that in many cases parents had adopted Christian beliefs before agreeing to send their children to a specific residential school. Wouldn’t that make some parents complicit in the genocide of their own children? What reasonable parent would do that?
The accusation of genocide against Canada is a conceit that has enjoyed so much life out of venal grievance-mongering, a poor understanding of what genocide really is, and indulgent media and politicians looking to justify their bigotry of low expectations by making aboriginal people absolute victims.
Michael Melanson is a Winnipeg-based writer