The National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) has concluded that Canada has committed genocide against its Indigenous peoples. This is bolstered by a dense, sophisticated 46-page supplementary legal analysis appended to the report.
International lawyers hardly have a monopoly over what is or ought to be characterized as genocide — the issue is also the subject of debate among historians, social scientists, and the general public. Nonetheless, genocide as a legal term was the creation of international law. The recognition that it happened is legally significant.
The supplementary legal analysis carefully emphasizes that it cannot be the last word. Still, it does come up with a series of strong arguments that draw upon international law.
The United Nations’ Genocide Convention must be interpreted in the light of evolving customary international law: states can be liable for genocide as well as individuals; one can commit genocide through omissions as well as actions; responsibility can be incurred for ongoing and disparate acts; members of a group can be killed in a variety of ways.
In my opinion, some international lawyers who might otherwise be sympathetic to the plight of Indigenous groups in Canada could nonetheless hesitate to label what happened as genocide.
For example, they may emphasize the non-applicability of the Genocide Convention for much of the period during which it was allegedly violated in Canada. They may argue that the convention covers only the physical and biological killing of the group. Or they may point out that Indigenous groups were purportedly not covered by the provisions of the Genocide Convention. They may opine that simply because something is not classified as genocide doesn’t mean it’s not despicable or worthy of condemnation.
Missing the point
Such hesitations are understandable, but they miss the larger point.
The attempt to grapple with genocide in Canada by the MMIWG commission is about more than simply applying international law to the facts. It’s also about decolonizing the international law of genocide, imagining what international law could be if it had not been historically implicated in colonization.
Just as it draws on international law’s authority, the MMIWG report is also a subtle indictment of it.
International law defined genocide narrowly after the Second World War and largely reflected the unique experience of the Holocaust. Colonial massacres before then — such as the genocide of the Herero in southern Africa — or even at the time, like the Sétif massacre in Algeria, were not considered genocide or crimes against humanity.
The focus on individual criminal responsibility in the last two decades may have further reinforced a sense that a few “bad apples commit genocide.”Therefore, a determination of genocide in Canada is partly despite the UN genocide convention’s failure to include Indigenous or gendered groups as protected minorities, its emphasis on massacres, and its insistence on individual intent.
The convention makes it structurally difficult to conceptualize genocide as anything other than the industrial killing or large-scale massacre illustrated by the Holocaust and the Rwandan genocide, respectively.
But suppose we accept that international law — which historically sanctified colonization — is not a sacred source of authority but part of a particular, historically and geographically situated tradition. In that case, we can imagine how we might rethink genocide.
The MMIWG report suggests, in particular, that we should think of “colonial genocide” as different from “Holocaust genocide.” It is a genocide happening everywhere and all the time. It is a genocide that is at least as much the result of a slow war of cultural attrition than the product of massacres. The intent is present, but it is structural. Responsibility is not only singular, not the work of a few bad apples, but collective.
Paradoxically, the challenge is not only to denounce genocide but to denounce the limitations of international law on genocide.
It is to question the authority to define “genocide” and foreground victims’ experiences in determining it. It is to insist that colonial genocide is genocide too. It is to recognize what happened in Canada over several centuries for what it is, despite the law’s best efforts to beat around the bush.
To decolonize genocide, decolonize how we comprehend genocide and reimagine what international law could stand for.
There has been much debate since the MMIWG report’s release about its legal consequences. The Organization of American States has asked Canada to create a panel to investigate genocide allegations further.