Commissioned by the Canadian government in 2016, the National Inquiry into Missing and Murdered Indigenous Women and Girls delivered its final 1,200-page report last week. The report contains many important recommendations to end endemic levels of violence directed at Indigenous women, but it is also noteworthy at the international level for its conclusion that Canada is internationally responsible for perpetrating a genocide against Indigenous peoples. This particular conclusion has reverberated across the country and made headlines around the world (see eg here, here, and here).
The creation of the National Inquiry was a 2015 campaign promise of the Trudeau Government which had pledged to renew Canada’s relationship with Indigenous peoples. The initiative was a response to mounting pressure from Indigenous organizations and civil society and came on the heels of the Truth and Reconciliation Commission of Canada, which documented multiple instances of violence and damages inflicted on Indigenous peoples.
The new public inquiry was created with the mandate to report on all forms of violence against Indigenous women and girls. The Government appointed five distinguished Indigenous jurists and advocates as Commissioners to undertake this momentous task, including retired Provincial Court Judge Marion Buller. The Commissioners’ decision to ground their findings in an international law framework really sets it apart from other public inquiries, and the conclusion that Canada’s policies amount to genocide triggering its international responsibility is hetero unprecedented. The legal analysis supporting that conclusion is presented in a supplementary report which was elaborated in consultation with three international legal scholars and lawyers with expertise in the field, namely Professor Fannie Lafontaine, Amanda Ghahremani and Catherine Savard.
Considerable effort is spent arguing on the contours of the genocide definition and its constitutive elements. While the report presents a defendable argument in that regard, it unfortunately falls short when it comes to establishing Canada’s international responsibility. This post will briefly outline the National Inquiry’s legal conclusions and offer a critical analysis of the methodology (or lack thereof) regarding issues of state responsibility.
A Colonial Genocide
The report makes the case for the recognition of “colonial genocide” as a particular form of atrocity capable of falling within the definition of genocide. Although it offers interesting Indigenous and gender-based critiques, the legal conclusions “are based on existing interpretations of international law”.
In an effort to distinguishing Canada’s actions from the traditional genocidal paradigm, the report describes the particular nature and scope of colonial genocide:
[C]olonial destruction of Indigenous peoples has taken place insidiously and over centuries. The intent to destroy Indigenous peoples in Canada was implemented gradually and intermittently, using varied tactics against distinct Indigenous communities. These acts and omissions affected their rights to life and security, but also numerous economic, cultural and social rights. In addition to the lethal conduct, the non-lethal tactics used were no less destructive and fall within the scope of the crime of genocide. These policies fluctuated in time and space, and in different incarnations, are still ongoing.
Relying on Article 15 of the ILC Articles on State Responsibility (ARS), the report frames the Canadian genocide as a composite act, ie “an unlawful act of the state spanning decades and composed of numerous distinct acts and omissions which, in aggregate, violate the international prohibition against genocide.” No individualized assessment is conducted, but these genocidal acts are said to be perpetrated in application of policies established and maintained by the Canadian state and are thus attributed to Canada under Article 4 ARS (state organs).
The report then proceeds to examine the material elements (actus reus) and genocidal intent (mens rea) of the Canadian genocide. According to the National Inquiry, “genocidal acts permeate the thousands of testimonies heard … in the course of its mandate”. The deaths of women in police custody, the crisis of child welfare, physical and sexual abuse inflicted in state institutions, the removal of children, and the chronic underfunding of essential human services are but a few examples cited as evidence of the actus reus. The stories of violence against women, girls, and marginalized people “are rooted in past events and refer to the lasting, generational consequences of these events.”
On the thorny issue related to the exact scope of the “specific intent to destroy”, the report concludes in favor of a more inclusive approach that goes beyond biological-physical destruction. Relying in part on a trend of cases before German domestic courts and the European Court of Human Rights, it concludes that genocidal intent may be construed as including the destruction of a group as a social unit. On that front, the report cites many historical events to demonstrate a “manifest pattern of similar conduct” reflecting an intention to destroy Indigenous peoples. They include notorious atrocities committed in the 1700s and early 1800s such as the distribution of blankets infested with the smallpox virus and the legal proclamation offering scalping bounties for the murder of Mi’kmaq peoples. The list also includes well-documented atrocities inflicted in the government-sanctioned residential schools starting in the 1880s. The report finds that many of these appalling policies aimed at destructing Indigenous communities continue today under a different guise, thus demonstrating a manifest pattern attributable to present-day Canadian state.
Based on these legal findings, the report contends that Canada’s international responsibility for committing genocide mandates the full implementation of the National Inquiry’s imperative recommendations (“Calls for Justice”) as a proper measure of reparation.
Glaring Omission of Intertemporality
There will, of course, be inevitable disagreements as to the analysis related to the constitutive elements of genocide – some scholars (here and here) have already expressed doubts, albeit in superficial terms for the moment. While reasonable minds will disagree on that issue, the report contains more fundamental gaps as it completely avoids dealing with the question of intertemporality.
As stated in Article 13 ARS, for Canada’s action to be in breach of an obligation, the State must be bound by the obligation in question at the time the act occurs. The Report states that destruction of Indigenous peoples has taken place “over centuries” and cites examples from the 1700s. Yet, it does not respond to a fundamental question: when was the crime of genocide recognized under international law? Did it exist in the 1700s?
The report seems to sidestep the issue by classifying genocide as a composite act, but the commentary to Article 15 makes clear that it is still subject to the intertemporal principle. If the relevant obligation did not exist at the beginning of the course of conduct, only actions or omissions occurring after the obligation came into existence will be internationally wrongful. One can wonder why the report did not bother to follow this explicit guidance, especially as other parts of the commentary to Article 15 are cited at length.
The temporal scope of colonial genocide also raises another fundamental problem – for much of the time period discussed, Canada was not a State capable of incurring international responsibility. Some of the 1700s and 1800s actions discussed in the report took place under British colonial rule, at a time when Canada did not possess an international personality. Responsible government was only introduced in 1847-1848, and most scholars would situate the starting point of Canada’s international legal personality between 1871 and 1931. Actions prior to this point would not normally engage Canada’s responsibility.
To be fair, even if earlier colonial actions do not constitute wrongful actions per se, the report could have argued that they may still be used to provide evidence of intent – something acknowledged in the commentary to Article 15. But this would raise another difficult question, whose intent? Was the UK’s colonial intent transferred to Canada upon gaining its international personality? Or was there a succession to responsibility for Canada?
This last possibility could have been an interesting avenue to explore. If the British Empire committed genocide through its colonial policies, and incurred state responsibility for doing so, it could be the case that Canada inherited this responsibility as a new successor state. Recent codification efforts on that question (see here and here) could have provided guidance to develop the analysis.
An Alternative Reasoning
The lack of treatment for the above questions is particularly striking when one considers that colonial genocide is specifically framed as an act spanning centuries. It is also hard to dismiss these issues as marginal or unimportant when similar arguments (in the form of objections ratione personae and ratione temporis) have been common features of ICJ litigation with respect to the Genocide Convention. As a basis for comparison, it is worth pointing out the precedent of the Australian Human Rights Commission which, in 1997, also concluded that the forcible removal of aboriginal children was genocidal. Importantly, the report addressed the temporal element by stressing that the practice continued for almost 25 years after the prohibition on genocide came into existence in international law.
The same rigor should have characterized the National Inquiry’s report. Alternatively, some of the temporal pitfalls could have been avoided if the report had determined that Canada was responsible for its failure to prevent a genocide. Colonial actions might not be directly attributable to Canada, but it could be held responsible for failure to prevent genocide if it subsequently perpetuated colonial injustices. There would have been much more flexibility on that front, but this alternative approach was unfortunately not addressed.
Ultimately, it was the National Inquiry’s decision to ground its conclusion in international law, and the analysis must be able to withstand scrutiny. It doesn’t. But that legalistic conclusion is no pretext to ignore the National Inquiry’s crucial work and the urgent actions needed to end systemic violence against Indigenous peoples. The Calls for Justice must be answered, irrespective of the Inquiry’s legal analysis.