Two months after Hitler invaded the Soviet Union, British Prime Minister Winston Churchill addressed the public: “As his armies advance, whole districts are being exterminated. Scores of thousands, literally scores of thousands of executions in cold blood are being perpetrated by the German police troops…We are in the presence of a crime without a name.” By the end of World War II, we had at least two names for it, Crimes Against Humanity and Genocide.

Now, almost 80 years later, a debate over the semantics of genocide has erupted in Canada, following a report from a National Inquiry investigating the problem of missing and murdered Indigenous women and girls (MMIWG). The report claims not only that Indigenous communities were historically victimized by racist and murderous colonial policies, but also that a “genocide” is still going on in Canada to this very day. While many well-meaning activists are pressuring the Canadian government to act on the findings of the Inquiry, others have questioned the use of this term.

The fact that the overall Canadian homicide rate for Indigenous Canadians is roughly five times higher than that for non-Indigenous Canadians is indeed a national scandal. But, to quote Canada’s Leader of the Opposition, Conservative Andrew Scheer, “the tragedy that has happened to this vulnerable section of our society is its own thing.” These murders, which affect the nation’s most disadvantaged group in alarmingly high numbers, are the result of individual criminal acts—domestic violence and street crime—not state-organized pogroms.

In a 43-page supplementary report, the Inquiry laid out its legal rationale for the use of the word “genocide,” applying an exceptionally broad and novel interpretation of international law. The authors conclude that a variety of wrongs (including assimilation through Canada’s notorious Residential Schools, and the forced relocation of children in foster care) have created a compounding series of evils that—in their totality over the course of many generations—constitute a state-inflicted genocide as defined in the United Nations’ 1948 Convention on the Prevention and Punishment of the Crime of Genocide. On the other hand, critics, including here at Quillette, have argued that the Inquiry’s use of the term “genocide” is inapt, since that word has been used to describe mass murder on an industrial scale, which obviously isn’t happening in Canada right now.

Debates about the meaning of genocide are not new. Back in 1951, an American group called the Civil Rights Congress submitted a petition to the United Nations called We Charge Genocide: The Crime of Government Against the Negro People. The petition’s 239 pages catalogued the high rates of incarceration of black people, rampant police brutality, segregation, lynchings and “the willful creation of conditions making for premature death, poverty and disease.” The facts and statistics outlined in the petition were heartbreaking and accurate. But did they add up to genocide?

Raphael Lemkin, the professor and legal scholar who’d coined the word genocide, and who helped draft the 1948 Convention, weighed in on the debate as follows: “The convention outlaws destroying in whole, or in part, a ‘national, ethnical, racial or religious group, as such.’ The petitioners list killings, lynchings and race riots. But these are actions against individuals—not intended to destroy a race.” Lempkin provided numerous reasons why the plight black people faced in America did not rise to the level of genocide. “The crime of genocide requires specific ‘intent to destroy’ a people,” he noted. “This is the fundamental requirement, which must be proven—not presumed.”

When it comes to the crime of genocide, this specific intent is fundamental (as distinguished from the looser “general intent” standard for mens rea that apply to many ordinary crimes, such as battery). A specific intent can be easily proven in some historical cases. For example, senior Nazi officials and Schutzstaffel paramilitary commanders planned the Holocaust at the Wannsee Conference of 1942; they made detailed plans to transport millions of Jewish people, by rail, to the smaller camps (where the victims would be exterminated by firing squad), and to the main extermination camps (where the killing would be done in gas chambers). This systematic killing of six million Jews was a true genocide—as was the simultaneous mass murder of hundreds of thousands of Romani people.

With regard to the Rwanda Genocide of 1994, which claimed around 800,000 lives, specific intent can be proven through compelling testimony—such as former Rwandan Prime Minister Jean Kambanda’s confession that “the genocide was openly discussed in cabinet meetings.” It also can be proven through military intelligence and the testimony of witnesses and informants, as per the telegram that Canadian then-Brigadier-General Roméo Dallaire, Force Commander for the United Nations Assistance Mission for Rwanda, sent to UN headquarters: “Informant states he disagrees with anti-Tutsi extermination. He supports opposition to RPF but cannot support killing of innocent persons.” (Dallaire learned that the Hutu-led government in Rwanda intended to commit a genocide three months before the killing began, but the UN ordered him to observe and not intervene, investigate, or confiscate weaponry.)

Specific intent also can be inferred from circumstantial evidence such as bank records and government archives. While investigating the causes of the aforementioned Rwandan genocide, perpetrated by Hutu extremists primarily against the country’s Tutsi minority, the BBC discovered that many weapons were purchased a year before the killings began: “The government of Rwanda imported, from China, three quarters of a million dollars worth of machetes. This was enough for one new machete for every third male.” In the case of Rwanda, a specific intent only can also be inferred through the operation of Radio Television Libre des Mille (RTLM), a nominally private station that was established and supported by the dominant Hutu elite. The station broadcast hate propaganda that compared the targeted group (Tutsis) to cockroaches, read out names of potential victims, and provided listeners with explicit descriptions of where people had fled so that the Interahamwe and Impuzamugambi militias could hunt them down and kill them. A July 2, 1994 broadcast on RTLM, for instance, told listeners that “the Inkotanyai [Tutsi political operatives and fighters] are so wicked…I do not know how they are created. I do not know. When you look at them, you wonder what kind of people they are. In any case, let us simply stand firm and exterminate them, so that our children and grandchildren do not hear that word Inkotanyai ever again.” From these words, we can infer a mens rea, the intent to destroy a group, by analyzing language endorsing not just isolated killing but mass extermination.

However, the National Inquiry into Missing and Murdered Indigenous Women and Girls, which was launched with much fanfare in 2015, embraced a more expansive, and novel, understanding of mens rea: “When it comes to state responsibility for the international wrongful act of genocide, the National Inquiry considers the attribution of intent to a state, in the same manner as evaluating a physical person’s state of mind, is somewhat fictional.” How does an element of genocide that Lemkin considered to be fundamental turn into something conceived as “somewhat fictional?”

The question is important because Canadian Prime Minister Justin Trudeau has signaled that he takes the use of the term “genocide” seriously. And two international bodies, the Organization of American States and the United Nations Human Rights Office, have indicated they will investigate the genocide allegations. Canada now has, arguably, a legal obligation under international law to launch another national commission, this one tasked with investigating the allegedly ongoing genocide—and, maybe, crimes against humanity. Such an investigation theoretically would include criminal investigations into the actions of current and former Prime Ministers and cabinet ministers. One might even argue that this investigation should be conducted by competent international prosecutors operating under the exclusive authority of the International Criminal Court in The Hague.

Moreover, in the event that the MMIWG report’s expansive re-definition of the international law of genocide became accepted as a legal precedent, this reconceptualized understanding of genocide could then be applied to almost any situation where colonialism occurred at some point in a nation’s history, or in any instance in any country where a particular racial or ethnic group suffers disproportionately high levels of criminal violence.

The crime of genocide is typically investigated and litigated with the goal of holding genocidaires accountable for their crimes. But in Canada, the Inquiry’s commissioners are attempting to transform the international crime of genocide into a legal obligation that requires a nation to offer redress and make reparation payments. Although redress and reparations are noble goals, the law regarding the crime of genocide has little to say about them.

The Inquiry’s commissioners presume genocidal intent from Canadian policies that continue to have negative effects on Indigenous people—and that create circumstances where MMIWG are disproportionately vulnerable to criminal violence. Instead of pursuing justice against actual genocidaires, the Inquiry wants to effectively convict an entire nation state of the crime of genocide. Such a determination would then trigger a legal obligation to make reparations.

In making such ambitious claims, however, the Inquiry ignores a main legal precedent in this area, established in a 1986 International Court of Justice (ICJ) case, Nicaragua v. United States. In that case, United States was ordered to pay reparations for its violations of international law. But the court also ruled that the United States was not liable for the human-rights atrocities (such as theft, kidnapping, burning of homes, executions and rape) committed by anti-communist Contra rebels who had been supplied, funded and trained by the CIA: “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed” (my emphasis).

Another ICJ case, Bosnia and Herzegovina v Serbia and Montenegro, explicitly applies the 1948 Genocide Convention and deals with the question of state responsibility. A majority of judges in that case found that Serbia (the legal successor state to Serbia and Montenegro) was not responsible for the 1995 Srebrenica genocide committed by members of the Bosnia Serb Army (though Serbia was found to have violated its obligation to prevent genocide as per the Convention on the Prevention and Punishment of the Crime of Genocide).

Under the sub-heading, Conclusion as to Responsibility for Events at Srebrenica under Article III, Paragraph (a), of the Genocide Convention, the court found that “it has not been established that the massacres at Srebrenica were committed by persons or entities ranking as organs of the Respondent [Serbia]. It finds also that it has not been established that those massacres were committed on the instructions or under the direction of organs of the respondent State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which, as indicated, constituted the crime of genocide, were perpetrated.”

In the Canadian context, this leads us to the question: Does Canada have “effective control” over the various murderers, rapists and abusive domestic partners who are victimizing Indigenous women and girls? Is there a military chain of command connecting these thugs to the Canadian government? Or is it the opposite—that the government of Canada, and the various provinces, act in opposition to these criminals, investigate their crimes, prosecute them in court, and punish them in public jails?

The answer here is quite obvious. Yet the Inquiry does not mention the effective-control test at all in formulating a rationale for claiming the existence of an ongoing genocide—except by glancing reference in one of the footnotes—let alone critique its application by the ICJ or other international bodies.

Genocide is known as the “crime of crimes,” to quote the International Criminal Tribunal for Rwanda case of Prosecutor v. Jean Kambanda. But as a matter of law, it is extremely narrow. The 1948 Genocide Convention was born in the shadow of the Holocaust. It was aimed at criminalizing the exterminationist campaigns emerging from the racist demagoguery that often infuses fascist ideology. It was, in short, designed to go after mass murderers such as Adolf Hitler—not impugn the socioeconomic policies of modern welfare states.

Over the past seven decades, courts have convicted former leaders and high-ranking military officers such as Jean Kambanda (the aforementioned former Prime Minister of Rwanda), Radovan Karadžić (former President of Republika Srpska), General Ratko Mladić (former commander of the Army of Republika Srpska) and Nuon Chea (second in command under Pol Pot’s Democratic Kampuchea). But the law remains narrow. The 1948 Genocide Convention does not protect people based on their age, socio-economic class, political beliefs, sex, gender or sexual orientation. Even the horrific crimes against humanity committed by Pol Pot’s Khmer Rouge regime in Cambodia from 1975 to 1979, which killed 1.6-million people, mostly lie outside the statute’s boundaries—since Pol Pot’s campaign primarily targeted victims on the basis of profession and social class, not ethnicity. The Genocide Convention has not criminalized Communist purges very well. (In 2018, a joint UN-Cambodian criminal tribunal convicted two former Khmer Rouge leaders for genocide—but that prosecution dealt specifically with two sub-campaigns, one against ethnic Vietnamese victims and another against the Cham Muslim people.)

Canadian history is punctuated with true genocidal incidents—such as the Scalping Proclamations issued by the colonial governor of Nova Scotia, Edward Cornwallis, in 1749 and 1750. Cornwallis, despite orders from the Crown to make peace with the Mi’kmaq upon landing, committed genocide by starting a guerilla war with his elite Rangers. Then he expanded that war by paying a bounty for every killed or captured Miꞌkmaq. Cornwallis’ genocidal intent is evident from a comment he made at a council meeting: “If there was to be a ‘war,’ it will not be a war that ends with a peace agreement. That will only delay the final battle for another time. No, it would be better to root the Micmac out of the peninsula decisively and forever.” To Cornwallis, the survival of the Halifax colony required not just the displacement of the Miꞌkmaq—but also their elimination.

Cornwallis wasn’t alone. In 1763, the Lenape Nation laid siege to Fort Pitt (modern-day Pittsburgh) after the British broke their promise to leave the area following the French defeat in the Seven Years’ War. The British commander and future governor of Quebec, General Jeffery Amherst, wrote letters to a subordinate, asking, “Could it not be contrived to Send the Small Pox among those Disaffected Tribes of Indians? We must, on this occasion, Use Every Stratagem in our power to Reduce them.” Another letter by Amherst issues an order: “You will Do well to try to Inoculate the Indians by means of Blankets, as well as to try Every other method that can serve to Extirpate this Execrable Race.”

In his later work, Lemkin analyzed the relationship between genocide and colonialism. The concepts can be linked, but they are hardly synonyms. Genocide, as it is codified in international law, prohibits the destruction and annihilation of a group of people. Colonialism refers to the displacement and subjugation of Indigenous peoples, as well as the destruction of their cultures. As the MMIWG Inquiry commissioners themselves noted, “colonialism is a unique form of violence that does not fit easily in the international legal definition of the crime of genocide.”

Yet the Inquiry plows ahead with the conceit that the definition of genocide may be freely rewritten in a way that corrects “its failure to incorporate Indigenous and gender perspectives,” an apparently open-ended project that sweeps up a wide range of state actions and policies. According to the commissioners, “framing genocide in Canada as 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 allows us to understand its true nature without the entanglement caused by an inappropriate ‘copy and paste’ of the logic pertaining to individual criminal liability and to Holocaust-types of genocides.” But much of what the commissioners call “copy and paste” is what lawyers call “precedent.”

Even moving beyond the narrow legal question of what constitutes genocide, the Inquiry’s claims often seem profoundly ahistorical. The commissioners claim, for instance, that “Canada has displayed a continuous policy, with shifting expressed motives but an ultimately steady intention, to destroy Indigenous peoples.” As noted above, there are plenty of instances in which Europeans and their descendants truly did exhibit genocidal motivations. But the idea that this is part of an unbroken, “continuous” policy that extends to the present day is simply untrue.

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Even some of the historical examples that often are presented as examples of genocide mostly involve ignorance and callousness as opposed to actual mass-murderous intent. Consider, for instance, Canadian poet and bureaucrat, Duncan Campbell Scott (1862-1947), who vigorously championed the assimilation of Indigenous peoples, including through Residential Schools. The horrors of the schools and the crimes committed there are well-documented and undisputable. But it is possible to recognize these horrors while noting that there is no evidence that Scott was seeking to exterminate Canada’s First Nations, Inuit and Métis people.

In 1907, Dr. Peter Henderson Bryce released his Report on the Indian Schools of Manitoba and the Northwest Territories, which describes the poor and unsanitary conditions in most schools, the lack of quarantine procedures, and the large number of students dying from infectious diseases such as tuberculosis: “Of 1,537 pupils returned from 15 schools which have been in operation on an average of fourteen years, 7 percent are sick or in poor health and 24 percent are reported dead.” Tuberculosis (known as “consumption” in the 19^th century) was then a worldwide epidemic, and, according to 1905 census data, a leading cause of death for all Canadians. Nevertheless, many First Nations, Inuit and Métis communities suffered disproportionally during this period. Scott failed to act on the findings of Dr. Bryce’s report, and this decision no doubt led to more deaths among Indigenous children. He concluded that the information did “not justify a change in the policy of this department which is geared toward a final solution of our Indian problem.”

Scholars and activists often quote that sentence, since it foreshadows the bureaucratic euphemism the Nazis used to describe their plan to murder European Jews. But that is ahistorical. In a 1921 letter, Scott wrote, “It is observed with alarm that the holding of dances by the Indians on their reserves is on the increase, and that these practices tend to disorganize the efforts which the Department is putting forth to make them self-supporting.” The goal, for Scott, was to assimilate Indigenous peoples into the Canadian body politic. He wanted them to live, contribute to Canadian society, and no longer rely on his department for economic support. This assimilationist policy is now widely seen in Canada as disastrous, ignorant and even hateful. Moreover, the chronically underfunded and overcrowded environment at many residential schools made it easy for individual criminal actors to take advantage of the children and engage in illegal activities such as beatings, torture, molestation, rape and even murder. But the system was not created with the goal of extermination. Needless to say, that is of little comfort to victims and their loved ones—but mens rea is, and always has been, of critical importance at law, including in the adjudication of genocide.

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In a 2008 public apology, Prime Minister Steven Harper declared, “We now recognize that, far too often, these institutions [Residential Schools] gave rise to abuse or neglect and were inadequately controlled, and we apologize for failing to protect you.” When we look at the historical record, we find evidence that Canada was more than “negligent.” It was criminally negligent—in the sense that the Residential School system was an environment that caused deaths and bodily harm to so many as a result of the wanton disregard for the health and safety of pupils attending these schools. Describing this wrongdoing in a forthright manner brings us to another set of legal principles, predominantly existing in international customary law and codified in the 1998 Rome Statute of the International Criminal Court, under the designation Crimes Against Humanity.

The baseline mens rea here, crucially, is “knowledge of” instead of “deliberate intent to destroy.” The mens rea for crimes against humanity encompasses instances of gross negligence and willful blindness. And the actual guilty acts—actus reus—also are defined more broadly under this category, and include not only murder, but also “deportation or forcible transfer of population,” torture, persecution, apartheid, and—among others acts—“rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.”

Had Canada’s MMIWG Inquiry made the legal case that crimes against humanity had been occurring in Canada, they would have been on much firmer legal ground. Instead, we get a general statement to the effect that “this report is limited to a legal analysis of genocide, but the National Inquiry’s findings call for a broader examination of other international crimes, including in particular, crimes against humanity.” By focusing on the more ambitious, and dubious, claim of “genocide,” the MMIWG commissioners squandered an opportunity to create a meaningful national discussion about a more apt legal category.

More broadly, the blanket declaration of “genocide” serves to obscure the historical complexity that characterized European-Indigenous relations. As a case study, consider the tragic story of the Beothuk people, a hunter-gatherer nation that had been living throughout Newfoundland for 2,000 years, but which now are extinct.

The Beothuk may have been the first Indigenous North Americans to encounter Europeans when the Viking explorer, Leif Erikson, set up a temporary camp at L’Anse aux Meadows on the northern tip of Newfoundland around 990 AD. Centuries later, John Cabot landed on the island in 1497, and fishing the Grand Banks was begun in earnest by the English and French in the decades that followed. These fishers set up sessional camps along the shore—especially in and near modern day St. John’s. The Europeans considered it a lawless land. Thieving, thuggery, banditry, and piracy sometimes occurred amongst these sessional fishers. Contact with the Beothuk was not always amicable. And when Beothuk—following traditional customs—used fishing gear from one of these camps, the seasonal white fishers responded with violence. According to their vigilante notions of frontier justice, the punishment for theft (as they classified the Beothuk actions) was death: “Thus, the organized Beothuk-hunts began. The profit motive was soon added to the motive of revenge, for a raided Indian camp often yielded hundreds of caribou hides and other valuable furs.”

It was non-state actors who killed the Beothuk. And to complicate the narrative further, official state policy was to protect the Beothuk. In 1769, Governor John Byron proclaimed: “It is His Majesty’s [King George III] royal will and pleasure, that…I do strictly enjoin and require all His Majesty’s subjects to live in amity and brotherly kindness with the native savages [Beothuk] of the said island of Newfoundland.” Sadly, that policy had little effect. According to Canadian writer Harold Horwood, who found evidence of atrocities committed against the Beothuk in the late 18^th century,

The largest massacre of Beothuck took place near Hants Harbor, Trinity Bay. There a group of fishermen, armed for hunting, managed to trap a whole tribe of Beothuck, driving them out on a peninsula which juts into the sea. They followed the panic-stricken Indians until they were crowded to the last inch of land, against the salt water, and there proceeded to slaughter them with their guns. Those who rushed into the sea were shot as they tried to swim, and those who knelt and pleaded for mercy were shot as they knelt. The carnage did not stop until they had murdered every man, woman and child. They did not make an exact count of the number killed, but reported it to be ‘about four hundred.’

Some anthropologists have estimated that the entire Beothuk population numbered at most about 1,000 people, which means the above-mentioned mass killing was a death blow for the whole community—despite Governor John Holloway subsequently issuing a proclamation that prohibited the mistreatment of the Beothuk and offered rewards for any information about atrocities committed against them. In yet another misguided policy blunder, the government issued a bounty for any Beothuk captured alive, the intent being to stop the killing and urge the Beothuk to make peace by sending any captives back to their settlements with gifts and a promise of protection. But that policy had the opposite effect; it accelerated the hunting of the Beothuk.

In 1819, John Peyton Jr. and a group of trappers, set out to capture the few remaining Beothuk. “Peyton surprised a small group of Indians out on the ice of the lake and managed to overtake one woman and seize her. This happened to be Demasduit, the wife of the chief, Nonosbawsut. The chief tried to rescue his wife, but was stabbed in the back with a bayonet and then shot through the chest. His brother, who also made a gallant rescue attempt, was cut down by a musket ball.” The Crown charged Peyton and his gang with murder and abduction, but a jury acquitted them, absurdly ruling it self-defence.

The Inquiry’s suggestion that Canadian government policy amounts to a consistent, genocidal campaign to destroy First Nation, Inuit and Métis peoples—even to this day—falls apart when we look at much of the historical record. And the tragedy of the Beothuk is not the only moment in Canadian history that serves to contradict the Inquiry’s grand and sweeping generalizations about official government policy.

The collapse of the bison herds on the prairies in the 1870s and 1880s created a massive humanitarian crisis that confronted the Canadian government of the day. The famine out west was exacerbated when 5,000 Lakota people—fearing reprisals from the U.S. Army after defeating the 7^th Calvary at the Battle of Little Bighorn—sought refuge from the war fought south of the Canadian border. The Canadian government in the early years of confederation was often insensitive and patronizing. But for the commission to write off this whole period with the claim that Canada “denied food as a means to ethnically cleanse a vast region from Regina to the Alberta border” oversimplifies a complex history. The Canadian government provided aid to a number of First Nations facing famine, though it sometimes withheld or limited the food it provided, and made settling on a reserve a condition to receiving ongoing aid. Unlike the Holodomor, a genocide by famine intentionally caused by Joseph Stalin that claimed about five million Ukrainian lives, this was not a government-caused famine. However, the government did act in its own self-interest in response to a crisis. The traditional way of life for the Blackfoot, Cree and Nakoda nations was vanishing. Instead of doing nothing, the Canadian government responded to that reality by entering treaty negotiations.

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Canadian history has been “whitewashed” in the past. But going to the opposite extreme, by revising history based on the claim that state policy has always been “genocidal,” won’t get Canadians to confront despicable acts and condemn them for what they were.

Canadians need to know that their governments engaged in coerced sterilizations following Alberta’s Eugenics Movement and the 1928 Sexual Sterilization Act, and conducted medical experiments in Indian hospitals in British Columbia, and forced catastrophic relocations upon numerous Indigenous communities, including the Ahiarmiut people of the Artic. Even if these were not “genocide” campaigns in a legal sense, they were, in moral terms, close cousins.

In defending the use of the term “genocide,” one of the authors of the Inquiry’s legal analysis, lawyer Amanda Ghahremani, has argued that “Calling Canada’s treatment of Indigenous people a genocide does not negate the suffering of other communities—this is not a competition of horrors—but to not use the word in this context would deny Indigenous peoples their suffering.” Unfortunately, this is a political argument, not a legal one. And in any case, grand rhetorical gambits won’t do anything to further the process of reconciliation with Indigenous peoples—especially since the Inquiry’s misusage of the term genocide has, predictably, sucked away the oxygen that otherwise might have been used to forge practical solutions.

A path towards reconciliation means confronting a troubling history marked by atrocities. In 1942, Churchill spoke of a crime without a name, and the international legal community responded with sound reasoning and legal principles deeply rooted in customary international law. Lemkin helped draft the law of genocide. Hersch Lauterpacht added the phrase “crimes against humanity” to the charter of the Nuremberg Trials and then co-wrote a series of prosecutorial speeches that laid the groundwork for much of our modern war-crimes jurisprudence. But the MMIWG Inquiry has taken a radically different path. It twisted that language, ignored applicable legal principles, and tried to redefine international law in hope of creating a shortcut to redress and reparation. And by doing so, this Inquiry may have hindered the process of true reconciliation more than it helped.