‘The g-word’: Why it matters whether we call Canada’s actions toward Indigenous people a genocide
|National Post 04 Jun 2019 at 18:53|
OTTAWA — When Philippe Sands saw headlines in British media about Canada’s National Inquiry on Missing and Murdered Indigenous Women and Girls using the term “genocide” in its report, he understood immediately the impact it would have.
“The moment you characterize any act as genocide it draws attention in a way that no other word does,” he said in a telephone interview with the National Post. “Unlike crimes against humanity or war crimes, if an American president mentions genocide, it’s on page one. The moment you put the g-word in, whether it’s Myanmar, Armenia, whatever it is, everyone pays attention because it is seen as the crime of crimes.”
Sands, a lawyer and professor at University College London, has worked on genocide cases at the International Court of Justice and written many books on international law, including a 2016 book on the origins — and differences — between the concepts of “genocide” and “crimes against humanity.” Sands argues that crimes against humanity, which focuses on harm done to individuals as opposed to groups, is sometimes the more accurate term, but one that’s been downgraded in the public consciousness when compared to genocide.
“The fact is the British papers picked (the inquiry’s report) up because it mentioned the genocide word,” he said. “I suspect you wouldn’t have called me if it had just been called a crime against humanity.”
On Monday Prime Minister Justin Trudeau avoided using the term genocide, but used it Tuesday while speaking at a women’s conference in Vancouver. “We accept their findings including that what happened amounts to genocide,” he said. He then downplayed the question. “There are many debates ongoing around words and the use of words,” he said. “Our focus as a country, as leaders, as citizens must be on the steps we take to put an end to this situation. That is what we are going to remain focused on.”
I suspect you wouldn t have called me if it had just been called a crime against humanity
But Sands and many other legal experts have long argued that it very much does matter which term gets used — and not only because of legal considerations.
The inquiry’s report acknowledges that the concept of genocide is complex and disputed. It can have different meanings and uses in popular parlance, in the legal context and in academia.
In popular parlance, genocide generally refers to mass killings such as the Holocaust of the Jewish people during the Second World War. But as originally conceived, the concept is broader. Its basic definition in the 1948 Genocide Convention is “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” It cites killing as one example, but also others such as causing serious bodily or mental harm, and the forcible transfer of children.
Prime Minister Justin Trudeau speaks during the closing ceremony of the National Inquiry into Missing and Murdered Indigenous Women and Girls in Gatineau, Quebec, on June 3, 2019. REUTERS/Chris Wattie
In the strict legal sense, responsibility for genocide would have to be adjudicated by a qualified court or tribunal with jurisdiction. The inquiry does not have this judicial authority, as its own legal analysis admits: “An assessment of both individual and state responsibility requires a considerable body of evidence and must be carried out by a competent tribunal charged with this task.”
Sands, citing his own experience in international court, said the inquiry would have difficulty getting a judicial ruling that Canada was responsible for genocide for a few reasons, including the lack of a clear time frame.
Instead, the inquiry’s report goes into a more academic and political discussion about genocide, noting there are “outstanding disagreements” over how to apply the term. “To some extent, these differences are part of a more social versus legalistic interpretation of the term,” it says. Overall, the inquiry grounds its analysis in the work of Polish jurist Raphael Lemkin, who coined the term genocide in the 1930s and was instrumental in developing the Genocide Convention.
Lemkin was a focus of Sands’ 2016 book East West Street: On the Origins of “Genocide” and “Crimes Against Humanity.”The book contrasts Lemkin’s concept of genocide with the work of Hersch Lauterpacht, a law professor who advocated for the concept of crimes against humanity. Both concepts became part of international law, but they take fundamentally different approaches. Lemkin’s concept of genocide, Sands says, focuses not on the killing of individuals but on the destruction of groups. Lauterpacht’s work focused on protecting individuals from mass crimes.
The problem with putting so much focus on genocide, Sands argues, is that — as Lauterpacht warned — it can entrench a group-versus-group dynamic.
“When you allege that one group is being targeted, it increases psychologically their sense of victimization as a member of a group, and that in turn will engender feelings of even greater hatred towards the perpetrator of the crime, which tends to be another group,” he said.
“Lauterpacht’s thesis was … we need to focus on harm to individuals, not harm to groups, to avoid that anger. Lemkin says, yeah, absolutely, but the reality is people get harmed because they’re a member of a group, and the law needs to reflect that. And of course, I completely get it and understand that. So we’re caught in a fundamental dilemma — namely, the identifying of the act as a group crime reinforces the sense of group identity on both sides of the equation, and probably, in my view, as a psychological and a legal issue, enhances the likelihood of harm being caused.”
Sands’ point is that the debate over language matters, and calling something genocide can have long-lasting effects beyond the immediate news coverage. Sands said he does think the MMIWG inquiry’s report makes a valuable contribution to the larger debate.
“They have done a useful thing in giving rise to discussion and debate about the meaning of ‘genocide,’ its double terminology, political and legal,” he said. “Whether it is persuasive in legal terms, before an international court of law, is, however, far from apparent. On the other hand, I’ve long argued that the definition of genocide by international courts has been set far too high, way beyond what Lemkin intended, and if this report helps to lower the bar in law that would not be a bad thing.”
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