Cultural genocide: legal label or mourning metaphor?

• Author: Akhavan, Payam

On 21 June 2012 in Saskatoon, Leona Bird testified before the Truth and Reconciliation Commission of Canada (TRC). She told the story of how at the age of six, she and her younger sister were forcibly separated from their family, and sent to a residential school in Prince Albert, Saskatchewan. These are her words:

And then we seen this army covered wagon truck, army truck outside the place. And as we were walking towards it, kids were herded into there like cattle, into the army truck. Then in the far distance I seen my mother with my little sister. I went running to her, and she says, "Leona," she was crying, and I was so scared. I didn't know what was going on, I didn't know what was happening. My sister didn't cry because she didn't understand what we, we were, what's gonna happen to us. Anyway, it was time for me and her to go, and she, when we got in that truck, she just held me, pinched me, and held me on my skirt. "Momma, Momma, Momma." And then my mother couldn't do nothing, she just stood there, weeping. And then I took my little sister, and tried to make her calm down, I just told, "We're going bye-bye, we're going somewhere for a little while." Well, nobody told us how long we were gonna be gone. It's just, like, we were gonna go into this big truck, and that's how, that's how it started. (1) That is how it started, not only for Leona, but also for the 6,750 other survivors who testified before the TRC. That is also how it started for thousands of others who could not tell their stories, including the estimated 6,000 children who died in Canada's residential schools. (2)

On 15 December 2015, after six exhausting years of hearings, the TRC released its final report, Honouring the Truth, Reconciling for the Future. The summary of the report distilled the essence of its findings in these words:

For over a century, the central goals of Canada's Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as "cultural genocide." (3) Justice Murray Sinclair, Chair of the TRC, first used the words "cultural genocide" at a news conference in Ottawa on 2 June 2015. (4) It was greeted with rapturous applause by the audience--seemingly, a moment of rhetorical redemption for the long-suffering survivors. A few days earlier, Chief Justice Beverly McLachlin of the Supreme Court of Canada had also declared in a public lecture that the Indigenous peoples of Canada were victims of "cultural genocide". (5) This was a marked departure from her usual judicial restraint, a conspicuous condemnation of what she referred to as "[t]he most glaring blemish on the Canadian historic record." (6) Similarly, in an influential article published in 2012, Professors David MacDonald and Graham Hudson maintained that "terms like 'cultural genocide' ... convey the essence of what the [Indian Residential School] system was about: the attempted destruction of Aboriginal languages, religions and cultures in Canada." (7)

The introduction of the concept of cultural genocide in public discourse has produced both acute controversy and extensive commentary. For instance, in 2013, the Canadian Museum of Human Rights refused to qualify historical rights abuses against Indigenous peoples as "genocide"; this refusal gave rise to accusations that it was "sanitizing the true history of Canada's shameful treatment of First Nations." (8) By contrast, in the same year, a Canadian lawyer complained that

[A]boriginal elites who engage in this relentless blame game should reconsider the wisdom and efficacy of constantly accusing their fellow Canadians of racism and genocide. These are false and insulting accusations and they inhibit reconciliation, rather than promoting it. (9) The introduction of the concept of cultural genocide in public discourse has produced acute controversy. Amid this controversy, the question is whether cultural genocide has a legal meaning, and if not, why these words carry so much power. It may be assumed that the residential school survivors assembled in Ottawa that day were not applauding because of the concern that legal experts may have for precise terminology. Why, then, should such legal concepts and intellectual abstractions matter to those suffering from intimate grief and irredeemable loss? When we speak of legal pluralism, does it extend to how juridical terms are experienced emotionally in particular contexts and traditions? In short, in regard to Canada's Indigenous peoples, is cultural genocide a legal label or a mourning metaphor?

1. Physical Versus Cultural Genocide

   The celebration among the audience in Ottawa on hearing the word "genocide" reminded me of a similar incident in Guatemala City some years earlier. In 1998, while serving as a UN prosecutor at The Hague, I was dispatched as a legal expert to assist the UN Historical Clarification Commission for Guatemala, an inquiry into the atrocities committed during the Guatemalan Civil War in the 1980s. The Chair of the Commission was Professor Christian Tomuschat, a renowned scholar of international law from Germany. He had asked me to determine whether the military operations against the Mayan Indigenous population in the Ixil region qualified as genocide. These attacks were part of the so-called "anticommunist" campaign of the right-wing military regime of President Efrain Rios Montt. The testimony of the survivors was simply shocking. There were massacres of entire villages, in which not even women, children, or the elderly were spared. The killings were often accompanied by horrendous acts of rape and torture. These acts were part of a wider scorched earth policy, involving the systematic bombing and burning of villages and the deliberate destruction of food supplies, to eradicate the Mayan population. (10) The Commission described these crimes as "an aggressive racist component of extreme cruelty that led to the extermination en masse" of Indigenous populations. (11)

   On 25 February 1999, the Commission delivered its final report, Memory of Silence. Among its conclusions was the finding that Guatemalan armed forces, "within the framework of counterinsurgency operations carried out between 1981 and 1983, committed acts of genocide against groups of Mayan people." (12) As with Ottawa in 2015, hearing the term "genocide" elicited a rapturous applause among the long-suffering survivors--yet another testament to the power of this word.

   Unlike the situation in Canada, however, the UN Commission in Guatemala had invoked the term "genocide" in a strictly legal sense. The extermination campaigns in Guatemala fit squarely within the recognized definition of genocide under international law, whereas the forcible transfer of children in Canadian residential schools gave rise to ambiguity. In what appears to be an implicit recognition of the difference between legal and non-legal uses of the term, the TRC emphasized the distinction between physical and cultural genocide as follows:

   Physical genocide is the mass killing of the members of a targeted group, and biological genocide is the destruction of the group's reproductive capacity. Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next. (13) The TRC did not invoke any legal sources in using the term "cultural genocide", and did not purport to make a legal conclusion--with one brief exception, as I shall explain shortly. Indeed, the vast majority of commentary suggests that this term was adopted because of its moral and political weight.

   By contrast, the TRC's reference to physical and biological genocide is an apparent reference to the legal definition contained in article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (14) (Genocide Convention). This definition has withstood the test of time, as demonstrated by the fact that it has been included verbatim in article 6 of the Statute of the International Criminal Court (ICC Statute), adopted at the Rome Diplomatic Conference on 17 July 1998. (15) The travaux preparatoires indicate that proposals to expand its scope were rejected in favour of the "authoritative definition ... which was widely accepted by States and had been characterized as reflecting customary law by the International Court of Justice." (16)

   On 2 September 1998, just a few weeks after the ICC Statute was adopted, the International Criminal Tribunal for Rwanda (ICTR) delivered its historic judgment in Prosecutor v. Jean-Paul Akayesu (17) (Akayesu). This judgment affirmed that, beyond treaty law, the article II definition is also "undeniably considered part of customary international law." (18) Since then, the jurisprudence of the ICTR, together with the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), and the International Court of Justice (ICJ), has elaborated and clarified the scope of genocide under international law.

   In understanding the significance of cultural genocide, it is important to bear in mind the relationship between the crime of genocide and the separate category of...