Missing and Murdered Indigenous Women: Canada and Charges of Genocide

Missing and Murdered Indigenous Women: Canada and Charges of Genocide

For the last 30 years over 4,000 Indigenous women and girls are believed to have been killed or gone missing in Canada.[1] However, the true number of victims is unknown. During his election, Canadian Prime Minister Justin Trudeau promised to investigate the root causes leading to these murders and disappearances. To determine the extent of violence against Indigenous women, the Canadian government created the National Inquiry into Missing and Murdered Indigenous Women and Girls (“the Inquiry”).[2]

The Inquiry began in 2016 to examine the root causes of violence against Indigenous women. After a three-year long investigation, the Inquiry determined that “Canada’s past and current policies, omissions, and actions towards First Nations Peoples, Inuit and Métis amount[ed] to genocide, in breach of Canada’s international obligations, triggering responsibility under international law.”[3] The Inquiry’s report outlines how the mishandling and treatment of Indigenous people by the Canadian government constitutes genocide. This report approaches genocide by highlighting the unwillingness of European legal institutions to enact change. The report stresses that the suffering of Indigenous people is the result of an unbroken history of violence, injustice and neglect going back to the earliest days of colonization, fulfilling the legal definition of genocide or at minimum crimes against humanity.[4]

This article will discuss the Inquiry’s findings and analyze its conclusion that the Canadian government had and was committing genocide. Further, this article will discuss the use of the terms “genocide” and “cultural genocide”.

The Inquiry’s Findings

In its determination of genocide, the report first notes that although genocide is typically established through individual criminal accountability, states can also be responsible for genocide.[5] Overall, there is little precedent for state perpetrated genocide through structural violence. State responsibility under the Genocide Convention has been historically limited to preventing genocide and punishing it, however the International Court of Justice determined states have an obligation not to commit genocide.[6] In Canada, genocidal acts were perpetrated through governmental policies established and maintained by the state. The report further deconstructs the terminology of genocide, recognizing the failure of the international community to incorporate indigenous or gender perspectives in the Genocide Convention, creating a biased test for determining genocidal acts.[7] Further, the interpretations under the definition of genocide fail to address gendered facets of genocidal acts.[8] The Inquiry highlights that “gender destructive acts allow perpetrators to ‘maximize the crime’s destructive impact on protected groups.’”[9]

The Inquiry defines genocide by quoting scholar Raphael Lemkin, who stated genocide is the “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”[10] It also states that genocide encompasses a variety of lethal and non-lethal acts including “slow death,” which disproportionately impacts women and girls.[11] Officially, the UN defines genocide as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.[12]

Elements of the above are applicable to Indigenous peoples.

Types of Genocides and the Impact for Indigenous People

The treatment of Indigenous people is often considered long past cultural genocide—which within the international community is not legally recognized—rather than active, “formal” genocide. The Inquiry states that the debate around cultural genocide versus genocide in terms of treatment of Indigenous people is misleading because “Indigenous peoples have to work with norms of international law decided by ‘sovereign states’ who purposefully excluded their perspectives to serve their own interests.”[13] The debate between cultural genocide and “formal” genocide however could be used to create a beneficial standard to hold states criminally responsible for ongoing discriminatory treatment of indigenous people. As a group of people purposefully left out of international law, the Inquiry’s claim of genocide in Canada may provide an opportunity to deconstruct and decolonize international law through a new tribunal. A tribunal that could formally recognize cultural or colonial genocide.

Cultural genocide was subject to international debate during the drafting of the UN Declaration on the Rights of Indigenous Peoples.[14] The concept of cultural genocide has been used to describe the systematic elimination of a group’s identity through measures such as: forcibly transferring children away from their families, restricting the use of a national language, banning cultural activities, destroying schools, religious institutions, or culturally important sites.[15] Lemkin himself developed the idea of cultural genocide as he thought that a new legal category was needed because genocide as defined could not be reduced to mass murders.

As a legal concept, cultural genocide was devised as a sub-category, or aspect, of genocide.[16] Proof of genocide falls completely within a physical classification—often an attempt to physically destroy the group by killing members.[17] Precursors to physical acts are often covered up or hidden from international view and can be the last acts before immense killing takes place. Physical destruction can also be denied or excused under other pretexts. This creates a paradox for targeted communities as they cannot seek legal remedies until targeted obvious mass death has occurred.[18] Cultural genocide manifests in more subtle ways like forced assimilation policies towards a group such as sending indigenous children to boarding schools.

The key difference between the definitions of genocide and cultural genocide is the narrowly tailored scope on actions determined to be genocide. As currently suggested cultural genocide can be used as a more holistic accountability tool than that of strictly tailored genocide. Intent under genocide dolus specialis calls for a special motive: intent to destroy a group. Conversely, under the cultural subcategory of genocide motive is argued to not be found within “obscure states of mind” but rather in a pattern of actions and techniques that repeat in various locations and manifest within decrees and laws.[19] Theoretically, cultural genocide would be easier to prove as the intent could be derived from continued historical actions as well as enacted laws or decrees that oppress certain marginalized groups.

It is likely cultural genocide has yet to be recognized within international law because of the pervasiveness of assimilation techniques within legal systems of colonizing countries. Countries like Canada, America or even China could be held accountable for atrocities committed while pursuing economic welfare or expansion. Recognition of cultural genocide could severely limit governmental power or cause many laws to come under question as the intent for cultural genocide would be proven through decrees rather than physical annihilation. During the genocide convention, colonial states including Canada actively pushed for the exclusion of cultural genocide from the treaty.[20] States with colonial histories argued that the protection of minorities should be addressed through other human rights tools rather than genocide.[21] Human rights tools that also fail to account for the unique circumstances of indigenous people or groups that are oppressed under colonial states.

Colonialism also provides a unique form of violence that the international community has skirted around addressing criminally. In the case of genocide, colonialism would have certainly fulfilled all elements if not for the legal requirement of individual responsibility rather than the traditional state responsibility.[22] Colonial policies were created to include the physical destruction of indigenous people (e.g., by forced relocation on reservations like the Trail of Tears). Additionally, Indigenous people faced and continue to face forced assimilation practices and violence to force obedience. These insidious practices gradually destroy communities over centuries.[23] State policies affect Indigenous people’s rights to life, safety, health, economic security, culture and social rights.[24] Although the policies may change over time, they are ongoing. The Inquiry makes the claim that without clear start or end dates to encompass genocidal policies, colonial genocide conforms with genocide under international law as an “event.” [25]

Ultimately the Inquiry concludes that the “gradual nature of the obliteration of Indigenous peoples, and the lack of a uniform national policy spearheaded by a totalitarian mastermind, differentiate colonial genocide from our traditional understanding of what constitutes a genocide. These distinguishing factors have, unfortunately, allowed the Canadian consciousness to dismiss Canada’s colonial policies as racist and misconceived, rather than acknowledge them as explicitly genocidal and, even, ongoing.”[26]

The article daftly exemplifies why the Missing and Murdered Indigenous Women crisis fulfills the definition of genocide however the report is limited to the information it had access to and falls short of the ability to prove specific intent.[27] The limitation of specific intent could be rectified through a new tribunal that instead recognizes either cultural or colonial genocide. By recognizing either of these subcategories of genocide within international law, the evidence needed to prove intent would change to include policies in dictum as well as physical destruction. Under the legal elements of genocide as is, advocates need access to private documentation or correspondence to prove intent of a state or its actor. Under cultural of colonial genocide subcategories historical context could be examined as evidence as well as policies and the holistic nature of how they are enacted.

At a minimum, Canada should create a specific plan to address the crisis identified by the Inquiry. A year later, the only response to the investigation has come from the Minister of Crown-Indigenous Relations Carolyn Bennett who stressed Ottawa is working to stop the “ongoing national tragedy” and from Prime Minister Trudeau stating that the Inquiry’s demand will be used for “indigenous led action,”[28] though it is unclear what the Prime Minister means by such a statement. The Canadian Mounted Police have found that over 1,200 Indigenous women were murdered or went missing between 1908 to 2012, but government officials believe the actual number is much higher.[29] Canada’s governance and historical treatment of Indigenous people has directly led to the current disappearances, violence and murders against Indigenous women and girls. Canada must address the Inquiry’s claims of genocide and address systemic policies that have contributed to the crisis like policing and prioritizing funding for programs to end violence against Indigenous women.[30]

  1. Leyland Cecco Canada must not ignore Indigenous ‘genocide’, landmark report warns, The Guardian (Jun. 3, 2019), https://www.theguardian.com/world/2019/jun/03/canada-indigenous-genocide-women-report.
  2. Id.
  3. National Inquiry into Missing and Murdered Indigenous Women and Girls, Supplementary Report.
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id. at 8
  9. Id.
  10. Kathleen Newman-Bremang, MMIW IS A “CANADIAN GENOCIDE,” SAYS INQUIRY, Refinery29
  11. Supra note 1.
  12. UN Geneva Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2 Sec. 1
  13. Supra note 1 at 7
  14. Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective, Cultural Heritage Law and Policy (2016).
  15. Id.
  16. Leora Bilsky and Rachel Klagsbrun, The Return of Cultural Genocide?, European Journal of International Law, 373–396, 29 (May 2018), https://doi.org/10.1093/ejil/chy025.
  17. Id.
  18. Id.
  19. Goldsmith, Katherine (2010) “The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-Based Approach,” Genocide Studies and Prevention: An International Journal: Vol. 5: Iss. 3: Article 3.
  20. Bilsky and Klagsbrun, supra note 14.
  21. Supra note 1.
  22. Id.
  23. Id.
  24. Id.
  25. Id at 10.
  26. Id.
  27. Id.
  28. Jeremy Nuttall, Canada has enabled a ‘genocide,’ says inquiry report into missing and murdered Indigenous women and girls, Toronto Star (May 31, 2019), https://www.thestar.com/news/canada/2019/05/31/canada-has-enabled-a-genocide-says-inquiry-report-into-missing-and-murdered-indigenous-women-and-girls.html. See also: Merrit Kennedy, ‘Genocide’ Has Been Committed Against Indigenous Women And Girls, Canadian Panel Says, NPR News (June 3, 2019), https://www.npr.org/2019/06/03/729258906/genocide-has-been-committed-against-indigenous-women-and-girls-canadian-panel-sa#:~:text=Ethics-,’Genocide’%20Has%20Been%20Committed%20Against%20Indigenous%20Women%20And%20Girls%2C,communities%2C%20families%20and%20individuals.%22.
  29. Id.
  30. Id.