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Truth, Reconciliation,​ and the Responsibility to Protect

by Jon Telch 4 years ago in legislation

How Canadian International Legal Principles Can Work in Tandem with Reconciliation and Healing

Truth, Reconciliation and the Responsibility to Protect:

The 2015 Truth and Reconciliation Commission (TRC) found Canada responsible for perpetrating "cultural, physical, and biological genocide against Aboriginal populations." Canada is a signatory to the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), which renders the convention legally binding domestically. Canada has further committed to the Responsibility to Protect (R2P) principle, which is not legally binding per se, but can spur the action of the international community. As Canada has ratified these international commitments, and in light of the recent findings of the TRC, how has Canada failed Indigenous populations under the guidelines of these legal instruments?

A central focus of the debate following the TRC report was how the findings would translate into actions and reconciliation. Many questioned whether Canada would be bound by law to act on the TRC findings. In response, legal experts deemed the findings to be non-binding under Canadian law and the CPPCG. The extent of Canada’s obligations under R2P, however, have not yet been as thoroughly scrutinized.

One of the most recurring charges against Canada in the TRC report is the charge of cultural genocide against Indigenous populations. Remarkably, “cultural genocide” has never been officially recognized as a form of genocide in international law. This complicates the question of Canada’s legal obligations in response to the TRC report.

The concept of cultural genocide was voted out by a majority of states of the CPPCG in 1948. In 2007, the UN adopted the Declaration of the Rights of Indigenous Peoples. Leading up to the Declaration’s adoption, Indigenous groups campaigned intensely to finally see cultural genocide included in the larger definition of genocide, but were unsuccessful. In this instance as well, a large number of states opposed the inclusion of cultural genocide into the larger legal definition of the crime.

Without the crime of cultural genocide being adopted by the General Assembly of the UN or added to the CPPCG, the findings of the TRC charging Canada with this crime do not render Canada or its governments (of past and present) accountable under international law. There is no question that the exclusion of cultural genocide is a flaw of the UN convention, but its exclusion is ultimately the long-standing reality.

Further complicating the question of Canada’s legal obligations in light of the TRC report are the actions perpetrated within Canada’s Indian Residential Schools (IRS) as they relate to Article II(e) of the CPPCG. Article II reads: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such;". Article II(e) enumerates, as an act that would satisfy the definition: "forcibly transferring children of the group to another group." Though the IRS seems to fit the bill of this particular article of the genocide convention, it is difficult to prove conclusively that removing children from their families and sending them to an Indian Residential School qualifies as an act of genocide. This is due to the split of opinion within the public domain regarding the IRS system, and whether acts of genocide were, in fact, perpetrated.

"The desire to destroy cultures seems to be the reasoning for various public figures’ use of the adjective 'cultural' before the genocide. The other [...] is that some cling tightly — and childishly — to the idea that Canada has always been on the side of goodness and justice, and they find it very hard to accept, admit, and announce that we are a country that committed a program of genocide that lasted for many decades."

We know that early Canadian policy towards Indigenous populations and the foundations of the Indian Act leading to the creation of the IRS and their implementation was guided by a grotesque policy of "aggressive assimilation." Aggressive assimilation was indeed an attempt to destroy a group, as defined in the CPPCG. The split of public opinion on this reality will make it difficult to find a setting in which a Canadian government could openly accept failure to uphold the CPPCG in regards to Indigenous populations.

Conversely, the Responsibility to Protect doctrine might not abdicate Canada of international scrutiny in the context of the Indian Residential School system. According to Professor William Schabas, Professor of International Law at Middlesex University:

"The responsibility to protect (or R2P) applies to genocide but it also applies to crimes against humanity. For the application of R2P, there is no legal advantage in demonstrating that something constitutes genocide as opposed to crimes against humanity. Because so-called ‘cultural genocide’ is excluded from the international legal definition of genocide, it may be preferable to approach the residential schools' issue from the perspective of crimes against humanity."

R2P was first recognized in the 2005 World Summit Outcome (WSO), adopted by the United Nations General Assembly in 2005. The WSO report stipulated three main pillars, which comprise the Responsibility to Protect doctrine.

The first of the three pillars clearly defines a state’s obligation to its own population.

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement through appropriate and necessary means.

Among many other conditions, "deportation, or forcible transfer of population" constitute a crime against humanity. If the Canadian public or the international community can accept that the Indian Residential Schools were indeed crimes against humanity within the confines of R2P, it is clear that Canada would have failed its obligations under the first pillar. As a result, there would be international implications.

Of course, this does raise a significant question of the applicability of R2P to crimes that occurred before its 2001 conception and 2005 implementation. The Indian Residential School system opened schools, operated them, and closed them before R2P’s inception. In other past instances of crimes against humanity perpetrated by a state, justice and reconciliation have taken place after the crimes have been perpetrated. The reality is that, thanks to the implementation of the R2P doctrine, a means of judgment, definition, and further exploration of the IRS system and associated crimes against humanity can be achieved. If the Canadian public, academia, or governments of present and future are committed to reconciling the disturbing history of residential schools, the timing of R2P’s inception and application can be argued to be insignificant when compared to the grander implications of determining if the IRS system constituted a crime against humanity and the effect that such a determination could have on reconciliation.

Returning to the pillars of R2P, if a state fails to fulfill its obligations under the first pillar of R2P, the international community may implement pillars two and three. They read as follows;

"2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;

3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations."

The second and third pillars of R2P oblige the international community to take action when a state is failing to protect its own population. This does not mean, however, that in response to the TRC report, an international coalition of states will send peacekeepers or forces into Canada for failing to protect its own population. Rather, these pillars of R2P imply that other states (through the UN) may critique Canada’s inaction on R2P. According to William Schabas;

"The R2P doctrine, which is set out in a 2005 General Assembly resolution, places the primary burden on the State itself to ensure the protection of its population. This is called the ‘first pillar’. Only if it fails to protect its own population are the second and third pillars activated. These engage the international community and may lead to the issue being taken up by UN bodies, notably the Human Rights Council or the General Assembly."

Thus, the potential exists for Canada to receive a public, international reprimand for the Indian Residential School system under R2P. We know that the practice of Indian Residential Schools is a stain on that most notable point of pride of Canadians and our history, which is our understanding of tolerance. The question still remains, however, in confirming Canada’s failure to uphold R2P, as to what should happen next in the context of both national healing and justice?

William David serves as a Senior Advisor to Allied First Nations (AFN) and has experience working within the Canadian and international legal systems on Indigenous issues. David discussed the following when asked about R2P, coupled with the TRC findings, and what Canadian society might consider next;

"When I look at TRC’s findings, it was meant to uncover the truth and educate and support victims. I have a broad definition of the victim, of course, most directly there were the victims of residential schools, […] all of society has been affected by Resident Schools [...] As a crime against humanity, a continuous human rights violation or a tremendous moral lapse, Residential Schools qualify under R2P. What is more relevant is, what you do about it? The issue is that now that we know what happened, how do we begin to remedy what happened to the victims?"

As David goes on to explain; "TRC laid a strong framework for relief based on their calls to action […] it helps society avoid perpetrating something like this again while aiding to heal the victims. IRS was a continuing violation of human rights, that is important to recognize." The TRC was not meant to provide the framework for the trials of those who were responsible for the horrors of IRS, rather it was meant as a healing mechanism for the victims and Canadian society as a whole. Given the intended healing of the TRC, publicizing Canada’s failings within R2P would arguably be an important extension of the TRC’s findings.

In 2006, the Canadian government announced the "Indian Residential Schools Settlement Agreement," which acknowledged the damage caused by the IRS system and sought to financially compensate victims. As in any other instance of deeply rooted multi-generational trauma, the settlement is not remedied enough for the lasting impact of the horrors that transpired. Canadian society and the realities of the IRS system have a difficult relationship, which TRC sought to solve, through education and collective healing.

It is difficult to say if this was achieved, or if elements of Canadian society would rather not imagine their country, government, churches, and other institutions to be capable of the horrors of IRS. Viewing this issue through the lens of R2P may provide a stage for which Canada’s culpability and guilt can be publicized and accepted while maintaining the calls to action of the TRC for education and healing nation-wide.

Ontario Regional Chief Isadore Day explains that R2P can play a role in bridging the gap between the history of IRS and a national understanding of Canada’s failings to protect Indigenous populations by delving deeper into our history.

"We know for sure the historical aspect of the IRS is one part of the issue regarding R2P. The history of colonial occupation is contradictory to the history of warfare in Canada. If you look at the history of warfare in the US and Canada, there are blatant atrocities within war to ‘remove’ Indigenous populations from their land. The peace and friendship treaties and alliances within the war of 1812, saw our Indigenous people on this side of the ‘border’ become allies to the Crown and proved vital to the war effort. There was a very entrenched value system on our behalf, our people always honored our obligations to the Crown, but this was not reciprocated. There was a promise of recognition of sovereignty and shared land when the war would end etc. It’s important to consider the greater history beyond IRS. The Indian Act was initially passed in 1876, but it goes even beyond that, old treaties were already broken, but through the Act, there was a concentrated effort to remove and take as much as possible from our populations, and because of that effort the unfortunate reality is that Canadians, for the most part, know nothing of this history."

As Chief Day explains, IRS is one facet of Canada’s failure over history to uphold R2P within its own borders. The deeper history and lasting impact of colonialism in Canada could and should also be applied to R2P. As Chief Day argues, the passing and administration of the initial iteration of the Indian Act alone can be considered a violation of Canada’s R2P commitments. The Indian Act was the legislated means through which IRS was made possible, and the Act made attendance in IRS mandatory for Indigenous children. If we accept that IRS was indeed a crime against humanity (and thus a violation of R2P) then by extension the administration of the Indian Act at the time (as the Act has since been amended) of IRS would also constitute a violation of R2P.

Taking into account Chief Day’s comments on the greater history of human rights violations towards Indigenous populations within Canada, it is clear that any admission of Canada’s R2P failings must feature more than just the IRS. As discussed, the purpose of the TRC was to promote a national remedy and healing. However, perhaps such remedy and healing are impossible without the acknowledgment that Canada’s R2P shortcomings have been continuous in regards to Indigenous populations. The history of those shortcomings began with "First Contact" treaty violations and forced removal and was extended post-confederation by the Indian Act and residential schools. Appallingly, these shortcomings continue today with "boil water advisories" in many First Nation communities.

The TRC report provided detailed testimony of Canada’s horrific history with regards to Indigenous populations, focusing specifically on the Indian Residential School system. The cultural genocide Canada committed against this population, as charged by the TRC, does not breach Canada’s obligations under the CPPCG, due to the fundamental gaps of the convention’s coverage. A breach may exist if we accept the policy of aggressive assimilation as an intentional means of destroying Indigenous populations. It is also clear that, through the IRS and the implementation of the Indian Act, Canada has failed Indigenous populations under its commitment to the Responsibility to Protect. Of course, R2P only came in to effect in 2005, but as discussed it does provide a framework through which Canada can accept and publicly acknowledge a long history of human rights abuses forced upon Indigenous populations. Specifically, R2P showcases Canada’s culpability in regards to Indian Residential Schools. The Commission (TRC) was designed as a healing mechanism and offered a rare chance for a state to come to terms with a dark chapter in its past, in order to move forward without the shame of retributive justice or tribunals. The Canadian government ought to publicly accede that, as a nation and society, we failed Indigenous populations through the administration of the Indian Residential School system, which constituted a crime against humanity as well as a substantial violation of the R2P. Such a public acknowledgment will be critical to continue the important healing and remedy required by victims and Canadian society as a whole, that the Truth and Reconciliation Commission sought to accomplish. In addition, this acknowledgment would help shift the dialogue to a nation-to-nation relationship between Canada and Indigenous populations, rather than the former misguided paternalism and mistrust of the past.

legislation

Jon Telch

B.A., Carleton University

M.S.c., University of London

Former political staffer turned advocacy consultant and government relations strategist to underrepresented groups; child poverty, Indigenous issues and not for profits, among others.

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