The definition of genocide went through many stages before consensually agreeing to the wording of the 1948 Convention. In Article 2 of the 1948 Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups as much. The issue with this Convention is the ambiguities in the text which are, “intent”, “in whole or in part”, and “to destroy”. With a focus on the last ambiguity, to destroy can mean either cultural, physical, or biological extermination. For instance, In Article 2 in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the act of forcibly transferring children of the group to another group can be considered cultural genocide, even though cultural genocide is not included in the definition of genocide. Consequently, Canada’s history with the indigenous population should be considered as cultural genocide, since cultural genocide includes the non-physical destruction of a group.
A brief history of Canada’s cultural genocide came from the Indian residential schools’ system. Canada’s residential schools were heavily influenced by the American systems and first established in the mid-1880 for over a century. From the late 1800s to 1996, the Government of Canada implemented a policy under where it compelled indigenous children to leave their homes, and attend Indian Residential schools that were supervised by Canada and run by various churches. The solution to how to make the Indian residential school classify as genocide is to classify it under cultural genocide. By first explaining why cultural genocide is not included in the definition of genocide, and why it should be included to help the Indian residential school case. Because Indigenous leaders are demanding that Canada recognize the treatment of Indigenous peoples as genocide.
The first argument of why Canadian Indian Residential schools are not considered genocide is because of the ambiguous definition of genocide since the definition of genocide is more defined in Canadian law than in international law. For instance, prosecutions may not be initiated against persons for allegedly committing genocidal acts within Canada prior to July 17, 1998. And the legal definition of an Indian at the time of residential schools was an “uncivilized person, destitute of the knowledge of God or any fixed and clear belief in religion”. In addition, Indigenous peoples saw the inclusion of cultural genocide in the Declaration draft as a step in the right path for assessing Indigenous cultural degeneration as a result of past and current government policies. However, the State went for the exclusion in the Declaration draft because cultural genocide was ambiguous and lacking clarity at the time, which was why it was not accepted in international law.
But Lemkin believed that culture was an important component of individual and group well-being in human societies. This is why threats or violations of a group’s culture would have harmful results in the groups’ disintegration and assimilation. Lemkin was a proponent of what the sociologist Rogers Brubaker calls ‘groupism’: ‘the tendency to treat ethnic groups, nations and races as substantial entities to which interests and agency can be attributed.’During the Indian residential school time, about one child in three were abused emotionally, sexually, and physically and the damage suffered greatly affected generations of Aboriginal people. Around 6,000 children died in the Indian residential schools and their bodies were never returned to their communities, but instead buried in unmarked graves. Lemkin’s inclusion of cultural genocide as part of the genocide convention was debated by States because they feared prosecution for their treatment of minorities.
Continuing, the second argument is how genocide was created from colonialism, and using colonialism as an excuse for it. For the reason, that colonial policies in settler societies were vital for the annihilation of indigenous populations following contact. The indigenous experience in settler states has been important in defining cultural genocide as non-physical destruction of a group. But for colonizers, cultural genocide was the most efficient way of tackling Indigenous integration without the physical destruction of aboriginal peoples. In Canada, the Indian Act of 1876 gave the federal government power to oversee all aspects of Indian life, including cultural practices, taxation, elections of chiefs and councils, management of reserves, etc. The cultural suffering that coincides with land claims is exacerbated by the loss of traditional forms of social organization that in the past might have been a source of collective healing and solidarity. In addition, this was executed through residential schooling to reshape the identity of First Nations, Inuit and Metis children. Therefore, law and colonialism were instruments of genocide, both in the physical and cultural.
An example of cultural genocide was a school apportioned for the Mohawk tribe that was between both the U.S. and Canada. This school began during the British rule in 1831 and was called the Mohawk Institute Residential School. The school was run by a Protestant missionary society and its purpose was to convert and civilize the “wild” native of Indigenous children. The school was called the ‘Mush Hole’ and native children who were billeted there were forbidden from speaking the Mohawk language, or from practicing their customs. Settler colonialism is the introduction of new settlers into a territory, people who then occupy the land and violently displace the indigenous inhabitants. Therefore, almost by definition that colonialism is genocidal because colonizers are taking over their land and murdering or providing serious bodily harm to the group. In terms of the Indian residential schools, once assimilated Aboriginal children were forced into society as workers and servants. To reiterate, one of the distinguishing features of genocide which case law continually reaffirms is the crucial importance of a specific intent or dolens specialis to “destroy, in whole or in part, an identifiable group of persons.”
A solution to making Canada’s Indian Residential Schools case be considered as a case of genocide is through Lemkin’s definition of cultural genocide. Lemkin had thought of “cultural genocide” as essential to his concept of genocide. He saw cultures in the same way ecological conservationists see species of plants. Lemkin wanted to protect cultural diversity, he was not just interested in protecting people from mass murder. Because for him, genocide was the removal of group identity from the world, whether the members of the group were killed or not. And having campaigned for the Convention, Lemkin did not want to disavow it, even if it did not accord with his idea of genocide. Hence, the UN convention removed the idea of cultural genocide and created the impression that genocide meant mass murder. Lemkin acknowledges that genocide can be committed by kidnapping children because he argued it was a form of biological genocide, by preventing children from reproducing within the group.
However, Canada’s forced assimilation policy was implemented with the view that the government “could not kill the Indian but it could kill the Indian in the child” (TRC Final Report 2015). Canada’s policy was designed to force Aboriginal people into European ways of life by forcing them to abandon their language, culture, and indigenous ways and adopt the language, culture, and religions of other non-indigenous Canadians. These strategies were implemented to destroy family bonds by denying them any meaningful contact with their parents. Consequently, the early drafts of the Genocide Convention included cultural genocide in the definition, but it was removed after heavy opposition from Canada and other Western nations. Partly because these nations would be in violation of the convention they were about to sign, and why Canada was so opposed to including cultural genocide in the article. Western nations need to understand that cultural genocide is more accurate than “forcible assimilation,” because groups with clearly defined identities were targeted as groups, rather than as individuals. Cultural genocide is a moral descriptor anchored in a legal historical process and as such is a useful ground floor. This is proven by the number of civil actions brought by residential school survivors, which rose up to over 10,000. And the federal government took notice and implemented the Residential School Abuse Lawsuits Act of 2000, to limit the number of lawsuits.
To conclude cultural genocide as defined in the Secretariat draft is destroying the specific characteristics of the group by forcible transfer of children to another human group, forced and systematic exile of individuals representing the culture of a group, etc. The Ad Hoc Committee consisting of representatives from seven member states (U.S., Canada, U.K., etc.) reworked the Secretariat Draft, the committee completed its draft in April-May 1948. But they did keep one clause from that “cultural” genocide which was the forcible transfer of children, and that became line “e” of Article 2 in the final version. Voltaire states that it is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets. Therefore, classifying an event as genocide depends on one’s definition of genocide. Because determining whether any particular act of mass violence is a genocide has been controversial. Since the holocaust of European Jewry during WWII has been the paradigmatic case of genocide, an example to judge whether any other event is a genocide, such as the Indian residential schools. This is why it makes it difficult to call anything else a genocide because it cheapens the term. In addition, the impact of the Indian Residential School system has led others to find a stronger language than ‘school’ to describe these institutions. However, identifying residential schools under terminology such as camps or prisons creates the problem that Canada is avoiding, which is cultural genocide.
Lemkin himself believed the genocide term could be applied to many other cases of mass violence going back to ancient history. This “crime of crimes” was rather common, and he was concerned with the inflation of genocide. What counts as genocide? Extraordinary cases in human history? Which is why Lemkin wanted to limit its usage, he was fearful that the term’s meaning would be cheapened if applied too broadly. But the collective and individual harms experienced by residential school survivors resembles a cultural genocide from the loss of language and culture to the loss of opportunity and loss of income.
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