Like Weeds in a Garden:
Genocide, International Law & Canada's "Indian Problem"

by Pierre Loiselle
http://dominionpaper.ca/original_peoples/2006/10/12/like_wee...

Not all of the International Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) made it into the Canadian Criminal Code. The following parts of Article Two, which define the crime of genocide, were omitted when the Convention was ratified and became law in 1952: "Causing serious bodily or mental harm to members of the group" and, "Forcibly transferring children of the group to another group." Dr. Roland Chrisjohn, director of the Department of Native Studies at St. Thomas University in Fredericton, says that the omissions are not a coincidence. The original two omissions correspond directly to Canada's official policy of abducting Native children and keeping them in residential schools, where many were subject to gruesome and well-documented abuse and torture.

"Modern genocide is an element of social engineering, meant to bring out a social order conforming to the design of the perfect society," wrote Zygmunt Bauman in his 1989 book 'Modernity and the Holocaust.' "This is a gardener's vision... Some gardeners hate the weeds that spoil their design... Some others are quite unemotional about them: just a problem to be solved, an extra job to be done."

As Chrisjohn explains, the glitch in Canada's garden begins with the problem that, according to European law, title to most of the land in Canada still belongs to its original inhabitants.

Canada's solution to what was once casually referred to as its "Indian problem" has been a strategy of social engineering known as assimilation which began with the 1857 ‘Act to Encourage the Gradual Civilization of the Indian Tribes of the Province;’ its modern-day equivalent is the Indian Act. Serving as head of the Department of Indian Affairs during the development of the residential school system, Sir Duncan Campbell Scott summarized the agenda of Canadian policy towards Native people: "Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian problem."

The Genocide Convention

Rafael Lemkin, who coined the word genocide and was responsible for drafting the CPPCG, explained in 1945 that "the term does not necessarily signify mass killings... More often it refers to a co-ordinated plan aimed at destruction of the essential foundations of the life of national groups so that these groups wither and die like plants that have suffered a blight."

"The end may be accomplished by the forced disintegration of political and social institutions, of the culture of the people, of their language, their national feelings and their religion," Lemkin wrote in 'Genocide - A Modern Crime.'

The CPPCG went through two drafts before it was approved by the United Nations General Assembly on December 9, 1948. Earlier versions of the Convention included means to establish an international court and many definitions reflecting the substance of genocide, including a provision that condemned forcible citizenship. These parts were removed in the final draft. According to Canada's representative at the UN, the Canadian stance was that, "a more limited interpretation of the term 'genocide' would be preferable." Objections primarily from Canada and the US eviscerated the final version of the Convention.

In his book ‘The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada,’ Chrisjohn writes that even in its watered-down form, Canada is in violation of the CPPCG. Residential schools were run from the 1800s to the 1990s where children were removed, by force of law, from their communities and sent to institutions run by the churches.

In the words of Scott, residential schools were designed to "take the Indian out of the Indian."

Chrisjohn explains that under the CPPCG, residential schools were clearly genocidal according to Article Two, which defines genocide 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.”

“I could argue all five, but the fifth one is a slam dunk,” says Chrisjohn. “There is absolutely no way Canada can deny that they legislated the transference of children from their parents to the church authorities.”

On May 21, 1952, when Canada's Parliament ratified the Convention, bringing it into the Canadian Criminal Code, they omitted sections b) and e) of Article Two. A further amendment in 1985 removed section d). It was around this time when accounts of the involuntary sterilization of Native women began to surface.

"They left out three-fifths of International law," says Chrisjohn, "that specifically would make in Canadian law what they were doing to First Nations people, from 1948 until the present day, the crime of genocide."

"It's not a coincidence. This is all too convenient."

The International Covenant on Civil and Political Rights

At first glance; a new international agreement seemed to bring about a means of holding those who commit genocide accountable.

"In the International Covenant on Civil and Political Rights (ICCPR)... there is provision for establishing International Criminal Courts in which Crimes Against Humanity could be brought to an impartial judge," Chrisjohn explains, referring to the Covenant passed in 1966 that came into force in 1976. The covenant affirmed that participating countries could not "derogate in any way from any obligation assumed under the provisions of the [CPPCG]."

"Canada couldn't allow that to happen, so in the Covenant there is a little proviso..." says Chrisjohn. "That is, minority populations of a country are considered citizens of the country and when the country does something to its own citizenry, that's considered an internal matter...So a citizen cannot sue his own country in international court."

"In 1960, with nobody having asked for it, Indians were declared to be citizens of Canada. It wasn't an act of generosity. They were already working on the [ICCPR] and they wanted to make sure that the Indians wouldn't be able to go to an international court and bring a charge against the Canadian government."

“All Canadians were made ‘genociders’ by their government,” states Chrisjohn pointing to Article Three of the CPPCG that also defines complicity in genocide as a crime. “You have a responsibility as a citizen of the world to know what your government is up to and resist [their] unlawful actions,” he says. “The crime of genocide is being covered up. Now it’s a double crime.”