Cultural genocide label for residential schools has no legal implications, expert says

The Truth and Reconciliation Commission says the residential school system amounted to cultural genocide, initiating a debate in Canada over whether that's the right label and what the implications may be if the federal government accepts it.

In its report, the TRC defines cultural genocide as "the destruction of those structures and practices that allow the group to continue as a group." That includes disrupting families "to prevent the transmission of cultural values and identity from one generation to the next."

Canada had previously voted to keep cultural genocide out of two major United Nations documents.

The Harper government hasn't accepted the TRC's conclusion about the residential school record as cultural genocide. But William Schabas, a Canadian and probably the world's leading expert on genocide law, says if it did, there would be no legal implications, however, "It would be a recognition that those words describe what happened."

Since the settlement of the class-action lawsuit that included the TRC also included payment for victims, there should be no direct financial impact, either.

And under international law, Schabas says there would also be no consequences because "cultural genocide is not a term that we use in international law." He adds that the Genocide Convention is not retroactive, something that the International Court of Justice clearly stated in a judgment earlier this year.

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Coining 'genocide,' 1944

It was only in the aftermath of the Second World War that genocide became part of international law. The concept of cultural genocide dates back to when the word genocide was coined, by Raphael Lemkin in 1944.

When he was a university student in Poland, Lemkin became interested in laws against mass slaughter after what happened to the Armenians in Turkey in 1915 — so interested that he changed his university studies to law and went on to devote his life to the issue and the cause.

Lemkin wanted to know, "Why is the killing of a million a lesser crime than the killing of an individual?"

By the 1930s, Lemkin was trying to warn the world, and his own Jewish family in Poland, about what Hitler had in store. His pleas ignored, Lemkin went into exile in the U.S. and kept doggedly campaigning for a new international law.

After the war ended, he learned that 47 relatives had died in the Holocaust.

Lemkin felt he needed a new word for the crime he was trying to prevent, and in 1944, he coined "genocide," which combined the Greek word for tribe or race and the Latin word for killing.

In his book that introduced the word, Axis Rule in Occupied Europe, Lemkin explained that genocide was not limited to the physical destruction of a people, but could include cultural and other techniques as well.

Although he does not use the phrase cultural genocide in his book, he does in his unpublished writings from the time, and in his memoirs.

Shamiran Mako, a Canadian scholar at the Weatherhead Center for International Affairs at Harvard University and at the University of Edinburgh, says that for Lemkin, "there's this understanding that there's other ways of killing a group without physically getting rid of them and that for him, was as important as the physical aspect of genocide."

Lemkin wrote that those ways include forbidding a group from using their own language or other means of cultural expression.

Cultural genocide voted out

In the debates that led to the Genocide Convention in 1948 — Lemkin worked on the initial drafting — including cultural genocide was debated intensely but voted out of the final draft by a majority that included Canada.

Some countries were nervous about their own behaviour and therefore opted to define genocide narrowly, Schabas says. And some countries also thought the issue was better dealt with under minority rights in the Universal Declaration of Human Rights, which was under debate at the same time.

In the end, the concept of cultural genocide doesn't appear in either document, a great shortcoming in Schabas's view.

With a narrower definition of genocide, Lemkin's initial idea "is not what ended up being the legal reality of genocide," Schabas says, although no individual probably deserves more credit than Lemkin that genocide became part of international law.

Schabas teaches law at Middlesex University in London. His latest book is Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals.

Canada and cultural genocide

Indigenous groups around the world took up Lemkin's campaign to include cultural genocide in that legal reality, lobbying both from within the UN system and from outside it. They campaigned unsuccessfully to include cultural genocide in the Declaration of the Rights of Indigenous People, adopted by the UN in 2007. Canada again opposed its inclusion.

Mako sees a pattern of opposition from countries with a history of colonization, and especially from countries that "had some systematic laws that either resulted in genocide or cultural genocide of the indigenous population."

In 1883, Canada's first prime minister, John A. Macdonald, explained his residential schools policy to the House of Commons, saying, "Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men."

According to Lemkin's definition, Macdonald was advocating cultural genocide, Mako says.

"There's a clear indication that there's an intention on the part of that government to strip away any sort of moral or cultural or spiritual attachment to that particular culture."

She notes that Lemkin referred to Canada in his writing when discussing techniques of non-physical destruction of a group. 

First Nations have spoken of cultural genocide since at least 1969, when the National Indian Brotherhood characterized a federal Liberal government white paper on "Indian policy" as advocating cultural genocide.

In 2013, former prime minister Paul Martin said, "What happened at the residential schools was the use of education for cultural genocide."

Schabas says it's interesting that the TRC's recommendations include nothing about applying the cultural genocide label, and they steer clear of a legal analysis of cultural genocide.

'An instant stigma'

When Lemkin coined the word genocide, he wanted a term "that would cast an instant stigma on anyone committing this crime," says Samantha Power, the U.S. ambassador to the UN, in Watchers of the Sky, a documentary about Lemkin. 

And that may be part of the reason some Canadians are unwilling to accept the description of the residential school system as cultural genocide.

Schabas compares the use of the term genocide to a very hot spice that "transforms something from being rather old news into something that gets the headlines."

Sometimes, he says, it also makes it harder for victims to reconcile with the perpetrator groups.

Cultural genocide ought to be covered by "crimes against humanity," Schabas says. That's one of the charges for which Nazis were sentenced to death at Nuremberg and he sees no reason to limit the charge to actions taken during wartime, which was the case at Nuremberg.

A documentary about Raphael Lemkin, Watchers of the Sky, airs on CBC's Documentary Channel on June 29 at midnight ET. Subscription required.