Cultural Genocide: Legal Label or Mourning Metaphor?[Notice]

  • Payam Akhavan

Payam Akhavan, LL.M., S.J.D. (Harvard), is an Associate Professor at McGill University’s Faculty of Law in Montreal and former Legal Advisor to the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia at The Hague. This article is based on the annual Jean-Gabriel Castel Lecture on International Law and International Organizations, delivered on 14 January 2016 at Glendon College, York University, in Toronto.

Citation: (2016) 61:4 McGill LJ 243

Référence : (2016) 61:4 RD McGill 243

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: 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. 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: Justice Murray Sinclair, Chair of the TRC, first used the words “cultural genocide” at a news conference in Ottawa on 2 June 2015. 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”. 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.” 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.” 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.” By contrast, in the same year, a Canadian lawyer complained that 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? 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 “anti-communist” campaign of ...

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