Melike Ergin
Cultural Genocide in Canada: Legal and Social Perspectives*
The term "genocide" is central to contemporary discourse, but its acknowledgment and prosecution are often hindered by political interests and diplomatic concerns. Recognizing genocide carries responsibilities for pursuing justice, restitution, reconciliation, and preventing future genocidal acts. However, political motivations and the avoidance of legal accountability often overshadow genuine recognition and prosecution efforts. Therefore, establishing a precise legal definition of genocide is essential.
To this end, I will address cultural genocide in Canada, including its definition, characteristics, and examples. I will explore the ongoing debate regarding the classification of Article 2(2)(e) of the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and provide an introduction to Raphaël Lemkin's original definition of genocide. Additionally, I will delve into the concept of cultural genocide, particularly in the context of Indigenous children's assimilation process by colonial settlers.
Definition and Characteristics of Cultural Genocide according to the Genocide Convention
On December 9, 1948, the final Resolution 260(III)A of the Genocide Convention was adopted by the UN General Assembly (UNGA), aimed at preventing and punishing the heinous crime of genocide. The Genocide Conventiondefines genocide in Article II 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.
The terms "killing," "serious harm," and "conditions of life" in paragraphs (a) through (c) can be summarized as physical genocide. This encompasses the intent to kill a person (paragraph (a)), that the harm is “permanent and irreparable”, including “acts of torture, bodily or mental cruelty, and persecution” (paragraph (b)), the methods of destruction aimed at the physical destruction and not the immediate killing of group members, as well as the imposition of living conditions for the group, such as malnutrition, systematic expulsion from their homes, and the reduction of essential medical care below the minimum standard (paragraph (c)).[1] Biological genocide in Article 2(2)(d) pertains to the destruction of a group's reproductive capacity and includes measures to “prevent births within the group, such as sexual mutilation, sterilization, forced birth control, gender separation, and the prohibition of marriages”.[2] These measures can be subsumed under both physical and mental genocide. Finally, rape can serve as a measure to prevent births due to the survivors' rejection of reproduction because of the traumatic experience.[3] Article 2(2)(e) refers to the enforced relocation of children from one community to another. This encompasses not only the physical transfer but also includes employing intimidation or causing psychological harm to achieve this displacement.[4] To constitute genocide, it's essential to grasp the specific aim, which involves the annihilation, either wholly or partially, of a “national, ethnic, racial, or religious group” as an entity.[5] The targeted groups typically exhibit stability, characterized by shared “citizenship, language, customs, or faith, and their membership” is often determined by birth.[6] Regarding genocide, the perpetrator's intent must be unequivocal, intending to cause the offense deliberately.[7] Actions that constitute genocide aim at individuals based on their group affiliation rather than their personal identity, thereby making the group itself the primary victim of the crime.
Article 2(2)(e) has been the subject of intense debate regarding its classification as cultural genocide and was ultimately excluded by the UNGA, primarily due to the voting bloc consisting of North and South America, Western Europe, and the Anglophone states of the Commonwealth, which sought to avoid their own criminal liabilities at the same time.[8] Therefore, Article 2(2)(e) is to be understood as biological genocide. This means, consequently, that the above definition should be regarded as restrictive, encompassing only material destruction and harm (biological and physical genocide), while excluding national, religious, racial, ethnic or any other elements of identity belonging to a particular group.[9] The original concept of genocide was introduced by the Polish-Jewish scholar and attorney Raphaël Lemkin in 1944, who defined it as follows:
“Genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves…. 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 the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups…. Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor.”[10]
Hence, the aim to destruction has two phases: the first phase is about erasing cultural, social and economic aspects of the oppressed group; the second phase involves imposing the culture and identity of the oppressor on the oppressed group. We can ascertain that cultural genocide has been incorporated into the concept of genocide and is regarded as a significant component of genocide. Due to the politically charged nature of the term, it was rejected by the UNGA. So far, the term “cultural genocide” has not been defined by the Convention, and consequently, we can only approach the term. MacDonald and Hudsan proceed further and introduce a terminological differentiation that cultural genocide is more accurate than 'forcible assimilation' as it targets groups with defined identities, not individuals;[11] It's a moral descriptor rooted in legal history, serving as a useful foundation.[12] Julian Burger notes that Ethnocide entails the denial of an ethnic group's rights to preserve and develop its culture and language, leading to the potential disintegration of Indigenous peoples as a distinct ethnic group.[13] Therefore, cultural genocide, as a form of non-physical destruction, entails the intentional and systematic erasure of cultural heritage and practices, including the suppression of language, religion, and other cultural elements of a targeted group within settler colonialist societies. The constituent “part of a group” refers to a “substantial number relative to the total population of the group,” respectively, necessary to fulfil the element of genocide (Prosecutor v. Jelisic).[14] In addition, the convention did not provide a definition for the term “intent” (e.g., dolus specialis) and solely stipulates in Article 30 of the Rome Statute that an individual is responsible and liable for punishment for a crime if they committed it with intent and knowledge,[15] which diminishes the effectiveness of the convention and hinders states from utilizing it as a preventive measure. The purpose of the Convention is to guarantee the preservation of the group's existence, and to halt and penalize any organized actions designed to endanger its survival. However, the Convention's definition merely specifies "committed with intent to destroy, in whole or in part," without explaining the specific type of intent necessary. To apply dolus specialis the intent to destroy must be directed toward the annihilation of the particular groups, wholly or partially.[16] Dolus eventualissignifies that the perpetrator is aware that their actions may result in the destruction of a group but proceeds to commit these acts.[17] While general intent involves intending to carry out killing without specific group destruction intent.[18]The concept of dolus specialis has been a subject of debate due to the challenges in acquiring concrete evidence to prove beyond a reasonable doubt that the offender harboured the specific intention to annihilate a group, wholly or partially. Intent, as it relates to an individual's mental state, is a complex internal cognitive process that is often difficult to establish without explicit articulation.[19] Consequently, perpetrators may refrain from explicitly expressing their true intent to avoid accusations of genocide. Thus, the international community has embraced the knowledge-based approach. In the context of genocide, the knowledge-based approach holds individuals accountable if they knowingly engage in acts that lead to the destruction of a specific group, even if they do not have the specific intent to destroy the group.[20]Collaboration with others is necessary for the annihilation of a group. Therefore, an individual can be held responsible for genocide by contributing to the destruction of a group through coordinated actions. This approach recognizes that the collective effort of multiple individuals can lead to the obliteration of a group, whether in part or in its entirety.[21]Goldsmith argues that the knowledge-based approach prioritizes protecting groups over focusing on the perpetrator's specific intent.[22] In conclusion, genocide is determined not only by the perpetrator's intent but also by the deliberate use of prohibited acts leading to the destruction of specific groups.
Examples of Cultural Genocide in Canada
The question remains unanswered as to whether the transfer of Indigenous children should be considered as biological or cultural genocide. The reason for the inclusion of Article 2(2)(e) was based on the original idea that “The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents’. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time.”[23] The 1947 Draft Convention has thus included in the definition of cultural genocide the prevention of the transmission of one's own identity and cultural habitus to the next generation. In the following, we will delve into the concept of cultural genocide using the example of the transfer of Indigenous children to Indian Residential Schools (IRS), as well as into the child welfare system. Three crucial periods have been pivotal in the removal of Indigenous children from their families and communities, shaping their assimilation and “integration” into the white Eurocentric settler society: (1) Indian Residential Schools from 1831-1996, where approximately 150,000 children were enrolled with the primary objective of severing the connection between the child and their cultural heritage and family; (2) the “Sixties Scoop” involved the removal of approximately 20,000 Indigenous children from their homes and communities, relocating them in non-Indigenous foster and adoptive care, without the consent of their families or bands; (3) the Millennial Scoop is essentially viewed as an extension of the Sixties Scoop. A notable differentiation rises between biological genocide and cultural genocide. Biological genocide, concerning the separation of children from their parents, would involve the deliberate destruction of the groups reproductive capacity. In contrast, cultural genocide, facilitated through separation, erodes the collective identity of the group rather than directly targeting its reproductive capabilities.[24] After all, assimilation can only be achieved through the estrangement of one's own culture into the Eurocentric, Christian-socialized society[25] were the “civilization” process of colonial settlers lead to the methodical institutionalization of cultural genocide.[26] Besides, colonial notions of superiority are evident in the attempt to “whitestream” children, whereby the expression of their culture was met with severe acts of physical violence, sexual abuse, murder and torture aimed at destroying their Indigeneity.[27] For instance, the repatriation of students from IRS frequently gave rise to identity dilemmas within Indigenous minors who had lost proficiency in their native language. This predicament subsequently severed their ties to spiritual beliefs, cultural traditions, values and ethics, ancestral knowledge, traditional health practices and cultural identity. Furthermore, it is essential to highlight that foster and adoptive caregivers received insufficient information regarding the child’s cultural legacy and the child's entitlements as an Indigenous person. Additionally, “the loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides.”[28] The IRS were also subjected to gender biased, discriminatory and racially prejudice educational system, with the majority of these institutions being administrate by Churches.[29]
Conclusion
Recognizing cultural genocide in Canada is essential for justice and reconciliation. The removal of Indigenous children to Indian Residential Schools, the Sixties Scoop, and the Millennial Scoop exemplify systematic efforts to erase Indigenous cultures. These actions severed connections to language, traditions, and identities, causing long-term harm.
Although the Genocide Convention's definition excludes cultural aspects, these practices fulfill the criteria for genocide as originally intended by Raphaël Lemkin. Cultural genocide disrupts the transmission of identity and traditions, aiming to destroy the cultural unit of a group.
Acknowledging these acts as cultural genocide is crucial for genuine reconciliation and the preservation of Indigenous identities. Moving forward, it is vital to support cultural revitalization and systemic changes that honour and protect Indigenous ways of life.
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* This paper was written for a critical reflection assignment as part of my course on Indigenous Peoples and Canadian State Law, taught by Professor Tamara (Baldhead) Pearl, at the University of Alberta.
[1] “War Crimes and Trials” (2028) 285 “The International Criminal Tribunal for Rwanda: Jean-Paul Akayesu” paras 500-506.
[2] Ibd., paras 507-508.
[3] Ibd., paras 508.
[4] Ibd., paras 509.
[5] Ibd., paras 510.
[6] Ibd., paras 511 - 514.
[7] Ibd., paras 523.
[8] Benvenuto, Jeff. “What is Cultural Genocide? Understanding Group Destruction in Genocide Studies”, (2010), online: Academia.eduhttps://www.academia.edu/3638812/What_is_Cultural_Genocide at 7.
[9] Payam Akhavan, "CULTURAL GENOCIDE: LEGAL LABEL OR MOURNING METAPHOR?" (2016) Volume 62 McGill Law Journal / Revue de droit de McGill p. 257. Available at: https://www.erudit.org/en/journals/mlj/2016-v62-n1-mlj02906/1038713ar/abstract/ (Accessed 28 October 2023).
[10] Lemkin, Raphael. “Axis rule in Occupied Europe”, (1944), online: Google Books https://books.google.ca/books?hl=de&lr=&id=ChhmqYeVS80C&oi=fnd&pg=PR7&dq=raphael%2Blemkin%2Baxis%2Brule&ots=7cNtXW3bJP&sig=XFkhcj6B4I4IV2MkAy5_LAZHZEo&redir_esc=y#v=onepage&q=Genocide%20does%20not%20necessarily%20mean%20the%20immediate%20destruction%20of%20a%20nation%2C%20except%20when%20accomplished%20by%20mass%20killings%20of%20all%20members%20of%20a%20nation&f=false.
[11] MacDonald, David B & Graham Hudson. “The Genocide Question and Indian Residential Schools in Canada” (2012) 45:2 Canadian Journal of Political Science 427 at 430-431.
[12] Ibd., 45:2 Canadian Journal of Political Science 427 at 430-431.
[13] J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (Zed Books Ltd., London, 1987) at 31.
[14] MacDonald, David B & Graham Hudson. “The Genocide Question and Indian Residential Schools in Canada” (2012) 45:2 Canadian Journal of Political Science 427 at 434.
[15] “Rome Statute of the International Criminal Court”, (1 July 2002), online: ICC https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[16] Safferling: Wider die Feinde der Humanität - Der Tatbestand des Völkermordes nach der Römischen Konferenz(JuS 2001, 735) Rn. 737
[17] Goldsmith, Katherine. “The Issue of Intent in the Genocide Convention and its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-based Approach” (2010) 5:3 Genocide Studies and Prevention 238 at 241.
[18] Ibd., 5:3 Genocide Studies and Prevention 238 at 241.
[19] Ibd., 5:3 Genocide Studies and Prevention 238 at 242.
[20] Ibd., 5:3 Genocide Studies and Prevention 238 at 245.
[21] Ibd., 5:3 Genocide Studies and Prevention 238 at 245.
[22] Ibd., 5:3 Genocide Studies and Prevention 238 at 247.
[23] Payam Akhavan, "CULTURAL GENOCIDE: LEGAL LABEL OR MOURNING METAPHOR?" (2016) Volume 62 McGill Law Journal / Revue de droit de McGill page 259. Available at: https://www.erudit.org/en/journals/mlj/2016-v62-n1-mlj02906/1038713ar/abstract/ (Accessed 28 October 2023).
[24] Ibd., page 263.
[25] Reyhner/Singh, Jon/Navin. "Cultural Genocide in Australia, Canada, New Zealand, and the United States: The Destruction and Transformation of Indigenous Cultures" (2010), online: https://jan.ucc.nau.edu/~jar/AIE/Cultural_Genocide.pdf at 15.
[26] Mako, Shamiran. “Cultural genocide and key international instruments: Framing the indigenous experience” (2012) 19:2 International Journal on Minority and Group Rights 175 at 178
[27]Choate, Peter et al, "Sustaining Cultural Genocide—A Look at Indigenous Children in Non-Indigenous Placement and the Place of Judicial Decision Making—A Canadian Example" (2021) 10:3 Laws 59 at 5.
[28] Ibd., 10:3 Laws 59 at 6.
[29] Ibd., 10:3 Laws 59 at 5.