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:<\/p>\n
And then we seen this army covered wagon truck, army truck outside the place. And as we were walking towards it, kids were herded into there like cattle, into the army truck. Then in the far distance I seen my mother with my little sister. I went running to her, and she says, \u201cLeona,\u201d she was crying, and I was so scared. I didn\u2019t know what was going on, I didn\u2019t know what was happening. My sister didn\u2019t cry because she didn\u2019t understand what we, we were, what\u2019s gonna happen to us. Anyway, it was time for me and her to go, and she, when we got in that truck, she just held me, pinched me, and held me on my skirt. \u201cMomma, Momma, Momma.\u201d And then my mother couldn\u2019t do nothing, she just stood there, weeping. And then I took my little sister, and tried to make her calm down, I just told, \u201cWe\u2019re going bye-bye, we\u2019re going somewhere for a little while.\u201d Well, nobody told us how long we were gonna be gone. It\u2019s just, like, we were gonna go into this big truck, and that\u2019s how, that\u2019s how it started.[1]<\/a><\/p>\n 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\u2019s residential schools.[2]<\/a><\/p>\n On 15 December 2015, after six exhausting years of hearings, the TRC released its final report, Honouring the Truth, Reconciling for the Future<\/em>. The summary of the report distilled the essence of its findings in these words:<\/p>\n For over a century, the central goals of Canada\u2019s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as \u201ccultural genocide.\u201d[3]<\/a><\/p>\n Justice Murray Sinclair, Chair of the TRC, first used the words \u201ccultural genocide\u201d at a news conference in Ottawa on 2 June 2015.[4]<\/a> It was greeted with rapturous applause by the audience\u2014seemingly, 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 \u201ccultural genocide\u201d.[5]<\/a> This was a marked departure from her usual judicial restraint, a conspicuous condemnation of what she referred to as \u201c[t]he most glaring blemish on the Canadian historic record.\u201d[6]<\/a> Similarly, in an influential article published in 2012, Professors David MacDonald and Graham Hudson maintained that \u201cterms like \u2018cultural genocide\u2019 … convey the essence of what the [Indian Residential School] system was about: the attempted destruction of Aboriginal languages, religions and cultures in Canada.\u201d[7]<\/a><\/p>\n 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 \u201cgenocide\u201d; this refusal gave rise to accusations that it was \u201csanitizing the true history of Canada\u2019s shameful treatment of First Nations.\u201d[8]<\/a> By contrast, in the same year, a Canadian lawyer complained that<\/p>\n [A]boriginal elites who engage in this relentless blame game should reconsider the wisdom and efficacy of constantly accusing their fellow Canadians of racism and genocide. These are false and insulting accusations and they inhibit reconciliation, rather than promoting it.[9]<\/a><\/p>\n 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\u2019s Indigenous peoples, is cultural genocide a legal label or a mourning metaphor?<\/p>\n The celebration among the audience in Ottawa on hearing the word \u201cgenocide\u201d 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 \u201canti-communist\u201d campaign of the right-wing military regime of President Efra\u00edn R\u00edos Montt. The testimony of the survivors was simply shocking. There were massacres of entire villages, in which not even women, children, or the elderly were spared. The killings were often accompanied by horrendous acts of rape and torture. These acts were part of a wider scorched earth policy, involving the systematic bombing and burning of villages and the deliberate destruction of food supplies, to eradicate the Mayan population.[10]<\/a> The Commission described these crimes as \u201can aggressive racist component of extreme cruelty that led to the extermination en masse\u201d of Indigenous populations.[11]<\/a><\/p>\n On 25 February 1999, the Commission delivered its final report, Memory of Silence<\/em>. Among its conclusions was the finding that Guatemalan armed forces, \u201cwithin the framework of counterinsurgency operations carried out between 1981 and 1983, committed acts of genocide against groups of Mayan people.\u201d[12]<\/a> As with Ottawa in 2015, hearing the term \u201cgenocide\u201d elicited a rapturous applause among the long-suffering survivors\u2014yet another testament to the power of this word.<\/p>\n Unlike the situation in Canada, however, the UN Commission in Guatemala had invoked the term \u201cgenocide\u201d in a strictly legal sense. The extermination campaigns in Guatemala fit squarely within the recognized definition of genocide under international law, whereas the forcible transfer of children in Canadian residential schools gave rise to ambiguity. In what appears to be an implicit recognition of the difference between legal and non-legal uses of the term, the TRC emphasized the distinction between physical and cultural genocide as follows:<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Physical genocide<\/em> is the mass killing of the members of a targeted group, and biological genocide<\/em> is the destruction of the group\u2019s reproductive capacity. Cultural genocide<\/em> is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.[13]<\/a><\/p>\n The TRC did not invoke any legal sources in using the term \u201ccultural genocide\u201d, and did not purport to make a legal conclusion\u2014with one brief exception, as I shall explain shortly. Indeed, the vast majority of commentary suggests that this term was adopted because of its moral and political weight.<\/p>\n By contrast, the TRC\u2019s reference to physical and biological genocide is an apparent reference to the legal definition contained in article\u00a0II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide<\/em>[14]<\/a> (Genocide Convention<\/em>). This definition has withstood the test of time, as demonstrated by the fact that it has been included verbatim in article\u00a06 of the Statute of the International Criminal Court<\/em> (ICC Statute<\/em>), adopted at the Rome Diplomatic Conference on 17 July 1998.[15]<\/a> The travaux pr\u00e9paratoires<\/em> indicate that proposals to expand its scope were rejected in favour of the \u201cauthoritative definition … which was widely accepted by States and had been characterized as reflecting customary law by the International Court of Justice.\u201d[16]<\/a><\/p>\n On 2 September 1998, just a few weeks after the ICC Statute<\/em> was adopted, the International Criminal Tribunal for Rwanda (ICTR) delivered its historic judgment in Prosecutor v. Jean-Paul Akayesu<\/em>[17]<\/a> (Akayesu<\/em>). This judgment affirmed that, beyond treaty law, the article\u00a0II definition is also \u201cundeniably considered part of customary international law.\u201d[18]<\/a> Since then, the jurisprudence of the ICTR, together with the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), and the International Court of Justice (ICJ), has elaborated and clarified the scope of genocide under international law.<\/p>\n In understanding the significance of cultural genocide, it is important to bear in mind the relationship between the crime of genocide and the separate category of crimes against humanity. In particular, widespread or systematic attacks against civilian populations, which do not constitute genocide, do not necessarily fall into a normative black hole; they may still qualify as a crime against humanity.[19]<\/a> The origin and concept behind this broader category demonstrates that what the TRC referred to as cultural genocide in a non-legal sense could constitute persecution in the legal sense. Crimes against humanity emerged with the adoption of the Charter of the International Military Tribunal<\/em>[20]<\/a> (Nuremberg Charter<\/em>) at Nuremberg in 1945. It was necessary because the category of war crimes, as then defined, only applied to victims who were foreign nationals, belonging to States at war with Germany. It did not protect victims of Nazi persecutions in the Axis countries, including the Jewish populations of Germany, Austria, Hungary, Romania, and Slovakia. It was therefore necessary to address this jurisdictional lacuna by including a new category that would criminalize atrocities against civilian populations irrespective of nationality; it was, at the time, a revolutionary concept and an unprecedented infringement on State sovereignty that presaged the adoption of the Universal Declaration of Human Rights<\/em>[21]<\/a> in 1948. Prior to these instruments, international law did not impose constraints on a State\u2019s treatment of its own population.<\/p>\n In his 1944 book, Axis Rule in Occupied Europe<\/em>, the Polish jurist Rapha\u00ebl Lemkin had introduced the term \u201cgenocide\u201d to describe Nazi Germany\u2019s racial demographic policies. He wrote that, beyond physical extermination,<\/p>\n genocide does not necessarily mean the immediate destruction of a nation … [but] is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.[22]<\/a><\/p>\n It was not until the adoption of the Genocide Convention<\/em> in 1948 that this new concept was formally recognized as a distinct international crime. Nonetheless, it had already emerged as a species of crimes against humanity under the Nuremberg Charter<\/em>.[23]<\/a> In the ICTY Prosecutor v. Zoran Kupre\u0161ki\u0107<\/em>[24]<\/a> case, presided by the renowned Judge Antonio Cassese of Italy, the Trial Chamber emphasized that<\/p>\n persecution as a crime against humanity is an offence belonging to the same genus<\/em> as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics.[25]<\/a><\/p>\n Beyond the intent to discriminate, the judgment explained the difference between persecution and genocide as follows:<\/p>\n While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea<\/em>, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.[26]<\/a><\/p>\n Therefore, in discussing cultural genocide, it is important to bear in mind that what does not qualify as genocide may still qualify as the closely related crime against humanity of persecution. In this regard, article\u00a07(2)(g) of the ICC Statute<\/em> defines persecution as \u201cthe intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.\u201d[27]<\/a> Surely, the case could be made that the residential school policy for Indigenous children amounts to the \u201cdeprivation of fundamental rights … by reason of the identity of the group.\u201d[28]<\/a> This policy thus falls within the ambit of the crime of persecution.<\/p>\n A crime against humanity is not a trivial offence. Why then the insistence on using the term \u201ccultural genocide\u201d? Let us first consider how the residential school policy relates to the strict legal definition of genocide. The process leading to the adoption of the Genocide Convention<\/em> began with the adoption of Resolution\u00a096(I) by the UN General Assembly on 11\u00a0December 1946. The text of this resolution provided as follows:<\/p>\n Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.[29]<\/a><\/p>\n Genocide was thus conceived as a crime in which the victim was an \u201centire human grou[p]\u201d.[30]<\/a> When the Draft Convention on the Crime of Genocide <\/em>(Draft Convention<\/em>) was prepared by the UN Secretariat on 26\u00a0June 1947, it included three categories of genocide: \u201cphysical\u201d, \u201cbiological\u201d, and \u201ccultural\u201d.[31]<\/a> By the time the final text of the Genocide Convention<\/em> was adopted by the UN General Assembly on 9\u00a0December 1948, physical and biological genocide were retained, but cultural genocide was deleted, with one possible exception, as I shall explain below. But what is most important is to appreciate that genocide is a crime against groups\u2014in particular, against a \u201cnational, ethnical, racial or religious group, as such.\u201d[32]<\/a> The question of its specific expression as physical, biological or cultural genocide is thus secondary to the intention to destroy a group. International jurisprudence confirms that the distinguishing feature of genocide is the mental element in the chapeau<\/em> of article\u00a0II; namely, the requirement that certain prohibited acts be \u201ccommitted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.\u201d[33]<\/a> This mens rea<\/em> has been qualitatively categorized as a specific intent or dolus specialis<\/em>, this being the most exacting mental element in criminal law.[34]<\/a> The actus reus<\/em> or material element of genocide is set forth in the five prohibited acts enumerated under paragraphs\u00a0(a) to (e) of article\u00a0II. These acts, however, cannot qualify as genocide unless the requisite mens rea<\/em> is established.[35]<\/a> By way of example, \u201c[i]t is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder.\u201d[36]<\/a><\/p>\n With regard to the actus reus<\/em> or material elements, it is important to note that the prohibited acts enumerated in paragraphs\u00a0(a) to (e) of article\u00a0II also contain a mens rea<\/em> element, in addition to the dolus specialis<\/em> requirement in the chapeau<\/em> of the definition. For instance, \u201c[k]illing members of the group\u201d in paragraph\u00a0(a) refers to \u201cintentional but not necessarily premeditated murder.\u201d[37]<\/a> The intention to destroy a group must thus be accompanied by the intention to commit murder. In this regard, genocide, like crimes against humanity, is a complex crime, which requires both a primary and secondary mens rea<\/em>; the first mental element defines the context within which an act is committed, whereas the second mental element defines the prohibited act by which the crime is committed. It is the scale and gravity of the context that is paramount in qualifying the underlying act as genocide rather than as an ordinary crime.<\/p>\n The TRC\u2019s reference to physical genocide only mentions \u201cthe mass killing\u201d of a group.[38]<\/a> There are, however, two other acts that also qualify as physical genocide under article\u00a0II of the Genocide Convention<\/em>. In regard to the second prohibited act, paragraph\u00a0(b) refers to \u201c[c]ausing serious bodily or mental harm to members of the group.\u201d[39]<\/a> In the Prosecutor v. Sylvestre Gacumbitsi<\/em> case, the ICTR held that<\/p>\n [s]erious bodily harm means any form of physical harm or act that causes serious bodily injury to the victim, such as torture and sexual violence. Serious bodily harm does not necessarily mean that the harm is irremediable. Similarly, serious mental harm can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim.[40]<\/a><\/p>\n In regard to the third prohibited act that also qualifies as physical genocide, paragraph\u00a0(c) enumerates \u201c[d]eliberately inflicting on the group conditions of life calculated to bring about its … destruction.\u201d[41]<\/a> The Akayesu<\/em> case opined by way of obiter dicta<\/em> that paragraph\u00a0(c) \u201cshould be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.\u201d[42]<\/a> This concept of slow death, it concluded, encompasses acts such as \u201csubjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.\u201d[43]<\/a><\/p>\n Therefore, it is the three prohibited acts contained in paragraphs\u00a0(a) to (c)\u2014namely, \u201ckilling\u201d, \u201cserious … harm\u201d, and \u201cconditions of life\u201d\u2014that are collectively referred to as physical genocide. The fourth act, \u201c[i]mposing measures intended to prevent births within the group\u201d under paragraph\u00a0(d) is referred to as biological genocide.[44]<\/a> The Akayesu<\/em> case stated obiter dicta<\/em> that this category should include acts such as \u201csexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages.\u201d[45]<\/a> Thus, in referring to physical and biological genocide, the TRC was referring to paragraphs\u00a0(a) to (d) of article\u00a0II of the Genocide Convention<\/em>.<\/p>\n The case could be made that certain elements of these prohibited acts apply to Canada\u2019s Indigenous peoples. For instance, some have argued that causing serious mental harm to residential school children qualifies as physical genocide.[46]<\/a> Others have maintained that the forced sterilization of Indigenous women in the 1960s and 1970s constitutes biological genocide.[47]<\/a> Of course, irrespective of how inhumane the acts may be, it must be established that they were committed with the requisite dolus specialis<\/em>. With regard to cultural genocide, however, what appears most relevant is the fifth and last prohibited act under article\u00a0II, paragraph\u00a0(e): \u201c[f]orcibly transferring children of the group to another group.\u201d[48]<\/a> Indeed, the only reference to a legal definition of genocide by the TRC, which appears in passing in an inconspicuous part of the summary of the final report, is the following:<\/p>\n It is difficult to understand why the forced assimilation of children through removal from their families and communities\u2014to be placed with people of another race for the purpose of destroying the race and culture from which the children come\u2014can be deemed an act of genocide under Article\u00a02(e) of the UN\u2019s Convention on Genocide, but is not a civil wrong.[49]<\/a><\/p>\n What, then, is the origin of this provision, and does it qualify as cultural genocide in a legal sense?<\/p>\n In order to better appreciate whether article\u00a0II(e) encompasses cultural genocide, it is instructive to consider the attempted resurrection, and ultimate rejection, of this concept in the drafting history of the UN Declaration on the Rights of Indigenous Peoples<\/em>[50]<\/a> (Declaration<\/em>). In fact, I began my UN human rights career in 1988 as a student intern with the UN Working Group on Indigenous Populations, which was entrusted with the ambitious task of drafting the Declaration<\/em>. It was still in its early stages, having only been established in 1982, and its meetings attracted an unprecedented gathering of Indigenous peoples from every corner of the world, providing an opportunity to define their unique concerns and priorities. It was in this light, after a decade of deliberations, that the central controversy surrounding the name of the working group itself emerged. The Indigenous participants wanted to be called \u201cpeoples\u201d rather than \u201cpopulations\u201d, but State delegates feared that by equating them with other peoples under colonial domination, they would become beneficiaries of the right to self-determination under international law, up to and including statehood. By the 1990s, the semantic controversy shifted to cultural genocide. Article\u00a07 of the working group\u2019s first Draft Declaration on the Rights of Indigenous Peoples<\/em>[51]<\/a> (Draft Declaration<\/em>) in 1993 attempted to introduce the terms \u201cethnocide\u201d and \u201ccultural genocide\u201d, indicating their obvious relevance to the global experience of Indigenous peoples. In particular, article\u00a07 provided that<\/p>\n Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for:<\/p>\n (a)\u00a0\u00a0 \u00a0 Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;<\/p>\n (b) \u00a0 \u00a0 \u00a0 Any action which has the aim or effect of dispossessing them of their lands, territories or resources;<\/p>\n (c) \u00a0\u00a0\u00a0 Any form of population transfer which has the aim or effect of violating or undermining any of their rights;<\/p>\n (d)\u00a0\u00a0\u00a0\u00a0 Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;<\/p>\n (e) \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Any form of propaganda directed against them.[52]<\/a><\/p>\n Had article\u00a07 been adopted, it could have reintroduced an even broader concept of cultural genocide than that proposed in the 1947 Draft Convention<\/em>. Although UN declarations are generally considered in international law terminology as hortatory \u201csoft law\u201d, they have the potential to \u201ccrystalize\u201d into \u201chard\u201d customary law if they reflect State practice and opinio juris<\/em>. Although UN General Assembly resolutions are mere recommendations under article\u00a010 of the UN Charter<\/em>,[53]<\/a> the ICJ has confirmed that, in appropriate circumstances, they \u201cmay be taken to reflect customary international law.\u201d[54]<\/a> Draft article\u00a07, therefore, was an opportunity to transform cultural genocide from what Professor Ronald Niezen calls \u201ca \u2018wannabe\u2019 concept\u201d[55]<\/a> into a binding norm of international law. In this hypothetical context, the TRC\u2019s use of that term would have assumed a very different dimension.<\/p>\n The far-reaching potential of the Declaration<\/em> was not lost on Canada, especially because \u201ccustomary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation.\u201d[56]<\/a> When, after twenty-five years of deliberations, the Declaration<\/em> was finally adopted by the UN General Assembly in 2007 by an overwhelming majority of 143\u00a0votes in favour, Canada was one of four States voting against.[57]<\/a> In view of public outcry, in 2010 the government of Prime Minister Stephen Harper finally relented and endorsed the Declaration<\/em>, but subject to an important qualification. In a carefully worded statement of understanding, the government noted:<\/p>\n Although the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws, our endorsement gives us the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.[58]<\/a><\/p>\n This statement was clearly intended to pre-empt a situation in which the Declaration<\/em> could be invoked against Canada as customary law based on silence or acquiescence, including before Canadian courts. The government of Prime Minister Justin Trudeau changed course. The Minister of Indigenous and Northern Affairs, Carolyn Bennett, announced in May 2016 that Canada had become \u201ca full supporter of the Declaration, without qualification.\u201d[59]<\/a> However, she referred to this policy as \u201cbreathing life into Section\u00a035 of Canada\u2019s Constitution, which provides a full box of rights for Indigenous peoples,\u201d leaving some ambiguity as to whether, in light of an equal \u201cnation-to-nation relationship,\u201d the Declaration<\/em> is a potential source of rights under international law beyond what is already recognized by Canadian law.[60]<\/a><\/p>\n For present purposes, however, it is sufficient to note that the proposed article on cultural genocide was rejected in the final draft of the Declaration<\/em>. Instead, there is a single reference to genocide in article\u00a07(2) as follows:<\/p>\n Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.[61]<\/a><\/p>\n Thus, the definition of genocide was not tampered with, and the broad category of cultural genocide was specifically rejected as a legal concept. Nonetheless, the forcible transfer of children as one of the prohibited acts under article\u00a0II(e) of the Genocide Convention<\/em> was particularly emphasized, demonstrating its relevance to the global experience of Indigenous peoples, and leaving open the question of whether it qualifies as a specific form of cultural genocide. It should be pointed out, furthermore, that although the term \u201ccultural genocide\u201d was deleted, the enumerated acts under article\u00a07 of the Draft Declaration<\/em> were retained as a new article\u00a08(1), which provides that \u201cIndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.\u201d[62]<\/a> All that is missing from this provision is the label of cultural genocide.<\/p>\n Professors MacDonald and Hudson contend that this terminological distinction is consequential:<\/p>\n Cultural genocide is more accurate than \u201cforcible assimilation,\u201d because groups with clearly defined identities were targeted as groups<\/em>, rather than as individuals. Cultural genocide is a moral descriptor anchored in a legal historical process and as such is a useful ground floor.[63]<\/a><\/p>\n Beyond cultural genocide as a broad \u201cmoral descriptor\u201d, the only solid legal basis for its inclusion in international law remains article\u00a0II(e) of the Genocide Convention<\/em>, to which the TRC makes a single passing reference. There is very little jurisprudence on whether \u201ctransferring children\u201d qualifies as cultural genocide in a legal sense.[64]<\/a> In the Akayesu <\/em>case, the ICTR stated obiter dicta<\/em> that \u201cas in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another.\u201d[65]<\/a> It did not address the question of whether the forcible transfer of children constitutes cultural genocide. By contrast, in the Prosecutor v. Mom\u010dilo Kraji\u0161nik <\/em>(Kraji\u0161nik<\/em>) case, the ICTY Trial Chamber, also by way of obiter dicta<\/em>, held that<\/p>\n \u201c[d]estruction\u201d, as a component of the mens rea of genocide, is not limited to physical or biological destruction of the group\u2019s members, since the group (or part of it) can be destroyed in other ways, such as by transferring children out of the group (or the part) or by severing the bonds among its members.[66]<\/a><\/p>\n By extending genocide beyond physical or biological destruction, the Kraji\u0161nik<\/em> case appears to recognize cultural destruction. In doing so, however, it contradicts two significant authorities. The first is the UN International Law Commission (ILC). In its 1996 commentary on the Draft Code of Crimes Against the Peace and Security of Mankind<\/em>,[67]<\/a> the ILC expressed the view that genocide only encompasses physical and biological destruction:<\/p>\n As clearly shown by the preparatory work for the Convention on the Prevention and Punishment of the Crime of Genocide, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word \u201cdestruction\u201d, which must be taken only in its material sense, its physical or biological sense.[68]<\/a><\/p>\n The ILC thus concluded that<\/p>\n the text of the Convention, as prepared by the Sixth Committee and adopted by the General Assembly, did not include the concept of \u201ccultural genocide\u201d contained in the two [earlier] drafts and simply listed acts which come within the category of \u201cphysical\u201d or \u201cbiological\u201d genocide. Subparagraphs\u00a0(a<\/em>) to (c<\/em>) of the article list acts of \u201cphysical genocide\u201d, while subparagraphs\u00a0(d<\/em>) and (e<\/em>) list acts of \u201cbiological genocide\u201d.[69]<\/a><\/p>\n In other words, the ILC defined the forced transfer of children under article\u00a0II(e) as biological rather than as cultural genocide.[70]<\/a><\/p>\n The second authority, which is even more persuasive than the ILC, is ICJ jurisprudence. In particular, in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide<\/em> (Croatia v. Serbia<\/em>) decided in 2015, the court held that<\/p>\n the travaux pre\u0301paratoires<\/em> of the Convention show that the drafters originally envisaged two types of genocide, physical or biological genocide, and cultural genocide, but that this latter concept was eventually dropped in this context.[71]<\/a><\/p>\n The court further stated that the forcible transfer of children \u201ccan also entail the intent to destroy the group physically, in whole or in part, since it can have consequences for the group\u2019s capacity to renew itself, and hence to ensure its long-term survival.\u201d[72]<\/a> Nonetheless, like the contrary authority in the Kraji\u0161nik<\/em> case, since the forced transfer of children was not at issue in Croatia v. Serbia<\/em>, the ICJ opinion too is obiter dicta<\/em>. There is thus no conclusive authority categorically excluding the characterization of article\u00a0II(e) as a form of cultural genocide.<\/p>\n It should furthermore be considered that the travaux pr\u00e9paratoires<\/em> of the Genocide Convention<\/em> are arguably not as conclusive as ICJ jurisprudence suggests. They indicate that the \u201c[f]orced transfer of children\u201d was originally conceived as \u201ccultural genocide\u201d and that it was considered as such by at least some delegates when it was retained in the final text of the Convention<\/em>.[73]<\/a> As mentioned previously, the 1947 Draft Convention<\/em> prepared by the UN Secretariat recognized the three categories of physical, biological, and cultural genocide. The text of subparagraph\u00a0(3) of article I defined \u201ccultural genocide\u201d as follows:<\/p>\n <\/p>\n (a)\u00a0\u00a0 forced transfer of children to another human group; or<\/p>\n (b) \u00a0 forced and systematic exile of individuals representing the culture of a group; or<\/p>\n (c)\u00a0\u00a0 prohibition of the use of the national language even in private intercourse; or<\/p>\n (d)\u00a0\u00a0 systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or<\/p>\n (e)\u00a0\u00a0 systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.[74]<\/a><\/p>\n Although there was significant disagreement on the inclusion of the broader concept of cultural genocide, the three experts consulted for the 1947 Draft Convention<\/em> agreed on the inclusion of the forced transfer of children. Those experts were Professor de Vabres of the University of Paris Faculty of Law; Professor Pella, President of the International Association for Penal Law; and of course, Professor Lemkin, who had first coined the term \u201cgenocide\u201d.[75]<\/a> The Secretariat explained the logic behind the inclusion of the forced transfer of children as follows:<\/p>\n The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents\u2019. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time.[76]<\/a><\/p>\n This explanation clearly corresponds to the TRC\u2019s emphasis in its definition of cultural genocide on \u201cprevent[ing] the transmission of cultural values and identity from one generation to the next.\u201d[77]<\/a><\/p>\n The final step before the adoption of the authoritative text of the Genocide Convention<\/em> involved deliberations before the Sixth (Legal) Committee of the UN General Assembly. The French delegate had proposed the deletion of draft article\u00a0III on cultural genocide from a later draft of the Convention<\/em> prepared by an ad hoc committee. The Canadian delegate, Mr. Lapointe, enthusiastically supported the French proposal. He explained that his government<\/p>\n disagreed with [the Draft Convention<\/em>] on the one fundamental point of cultural genocide. No drafting change of article\u00a0III would make its substance acceptable to his delegation. Yet … the Government and people of Canada were horrified at the idea of cultural genocide and hoped that effective action would be taken to suppress it. The people of his country were deeply attached to their cultural heritage, which was made up mainly of a combination of Anglo-Saxon and French elements, and they would strongly oppose any attempt to undermine the influence of those two cultures in Canada, as they would oppose any similar attempt in any other part of the world.<\/p>\n His delegation was not, therefore, opposed to the idea of cultural genocide, but only to the inclusion in the convention of measures to suppress it. … [I]t felt that the idea of genocide should be limited to the mass physical destruction of human groups.[78]<\/a><\/p>\n The reality was that the \u201ccultural heritage\u201d of Canada\u2019s Indigenous peoples was deemed unworthy of protection. As a matter of fact, a telegram dated 27\u00a0July 1948 from the Secretary of State for External Affairs in Ottawa instructed the Canadian delegation as follows:<\/p>\n You should support or initiate any move for the deletion of Article three on \u201cCultural\u201d Genocide. If this move [is] not successful, you should vote against Article three and if necessary, against the Convention.[79]<\/a><\/p>\n It is remarkable that Canada was willing to vote against the Convention<\/em> as a whole if the concept of cultural genocide was retained; yet, it was not alone in this view. The majority of delegates agreed that cultural genocide did not belong in the Convention<\/em> because it was not of the same gravity as physical and biological destruction. In the words of the Danish delegate, Mr. Federspiel, \u201cit would show a lack of logic and of a sense of proportion to include in the same convention both mass murders in gas chambers and the closing of libraries.\u201d[80]<\/a> Why then, was the forced transfer of children retained, given that it fell under the category of cultural genocide?<\/p>\n Professor William Schabas refers to paragraph\u00a0(e) as an \u201cenigmatic\u201d provision and notes that it \u201cwas added to the Convention almost as an afterthought, with little substantive debate or consideration.\u201d[81]<\/a> This provision was seemingly connected, however, with the Nazi policy of forcibly transferring so-called \u201cracially valuable\u201d children, which was one of the crimes that was prosecuted in the RuSHA case before the United States Military Tribunal at Nuremberg.[82]<\/a> The evidence included the statement of Heinrich Himmler, commander of the notorious \u201cSS\u201d Protection Squadron, that among the \u201cmixture of [occupied] peoples, there will always be some racially good types. … I think that it is our duty to take their children with us, to remove them from their environment if necessary by robbing or stealing them.\u201d[83]<\/a> The Office of Racial Policy had specified that \u201c[t]he children suitable for [assimilation] are not to be over 8 to 10 years of age because, as a rule, a genuine ethnic transformation, that is, a final Germanization, is possible only up to this age. The first condition for this is a complete prevention of all connections with their Polish relatives.\u201d[84]<\/a> Thus, in the RuSHA case, count one of the indictment charging the commission of \u201ccrimes against humanity\u201d included the \u201c[k]idnaping [of] children of foreign nationals … for Germanization\u201d as \u201cpart of a systematic program of genocide.\u201d[85]<\/a> The Prosecutor\u2019s argument as to the distinction between physical and cultural genocide is worth considering in regard to the residential school policy:<\/p>\n Many times throughout this proceeding we shall hear the defendants say how well these children were treated and of the wonderful care afforded them. In comparison to the treatment of other children whom these defendants rejected for Germanization this may well be true. But it is no defense for a kidnapper to say he treated his victim well. Even more important, we must ask ourselves why they were so treated. The answer is simple\u2014these innocent children were abducted for the very purpose of being indoctrinated with Nazi ideology and brought up as \u201cgood\u201d Germans. This serves to aggravate, not mitigate, the crime.[86]<\/a><\/p>\n It was perhaps these events from the war that resulted in the consensus among the three experts that the forced transfer of children should be retained in the 1947 Draft Convention<\/em>, even if there was disagreement on the wider concept of cultural genocide. In the Sixth Committee, however, the French amendment eliminated the whole category of cultural genocide.[87]<\/a> It was a subsequent Greek amendment that reintroduced the forced transfer of children into the definition of genocide. This amendment was apparently prompted by the alleged mass-abduction of an estimated thirty thousand children for indoctrination by communists during the 1946\u20131949 Greek Civil War\u2014a policy that Greece had condemned as \u201cgenocide\u201d.[88]<\/a> In 1948, at the same time as the final deliberations on the Draft Convention<\/em>, the UN Special Committee on the Balkans had obtained evidence that \u201cchildren had been forcibly removed from their homes\u201d and taken to communist countries such as Albania, Bulgaria, and Yugoslavia.[89]<\/a> The UN General Assembly had adopted a resolution calling for \u201cthe return to Greece of Greek children.\u201d[90]<\/a> It was in this context that the Soviet delegate, Mr. Morozov, opposed the Greek amendment, maintaining that \u201c[f]rom the historical point of view, there were records of the destruction of children and young people, but there were none of forced transfer constituting genocide.\u201d[91]<\/a> Other delegates, such as Mr. Kaeckenbeeck of Belgium, emphasized that the Greek amendment \u201cwould give unduly broad scope to the convention\u201d insofar as \u201c[t]ransfers of population did not necessarily mean the physical destruction of a group.\u201d[92]<\/a> The Greek delegate, Mr. Vallindas, thus attempted to strategically distance the proposed amendment from the rejected concept of cultural genocide, but without denying its relevance. He argued that the forced transfer of children was \u201cnot primarily an act of cultural genocide\u201d but that \u201cit could in certain cases be considered as such.\u201d[93]<\/a> The United States delegate, Mr. Maktos, on the other hand, supported the Greek amendment by framing the forced transfer of children as a form of biological genocide. He maintained that \u201cfrom the point of view of the destruction of a group\u201d there was no difference \u201cbetween measures to prevent birth half an hour before the birth and abduction half an hour after the birth.\u201d[94]<\/a><\/p>\n Notwithstanding these differing views, the Greek amendment was ultimately adopted,[95]<\/a> and thus article\u00a0II contained a fifth prohibited act under paragraph\u00a0(e) of \u201c[f]orcibly transferring children of the group to another group.\u201d[96]<\/a> The Greek delegate apparently considered it broad enough to include cultural genocide. The subsequent explanatory statement of the Venezuelan delegate, Mr. Perozo, supported this view. His remarks are particularly instructive on the question of whether the Canadian residential school policy may be properly characterized as genocide in a legal sense. He stated that the inclusion of the forced transfer of children<\/p>\n implicitly recognized that a group could be destroyed although the individual members of it continued to live normally without having suffered physical harm. Sub-paragraph\u00a05 of article\u00a0II had been adopted because the forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children. Such transfer might be made from a group with a low standard of civilization and living in conditions both unhealthy and primitive, to a highly civilized group as members of which the children would suffer no physical harm, and would indeed enjoy an existence which was materially much better; in such a case there would be no question of mass murder, mutilation, torture or malnutrition; yet if the intent of the transfer were the destruction of the group, a crime of genocide would undoubtedly have been committed.[97]<\/a><\/p>\n At the very least, the Venezuelan statement demonstrates that the travaux pr\u00e9paratoires<\/em> are not as conclusive on the question of cultural genocide as the ICJ and the ILC have suggested. It should also be noted that, under article\u00a032 of the Vienna Convention on the Law of Treaties<\/em>, \u201cthe preparatory work\u201d of a treaty only serves as a \u201csupplementary means of interpretation,\u201d where the ordinary meaning of a term is \u201cambiguous or obscure\u201d or \u201c[l]eads to a result which is manifestly absurd or unreasonable.\u201d[98]<\/a> Accordingly, could the question of whether paragraph\u00a0(e) of article\u00a0II constitutes biological or cultural genocide be simply answered by applying the ordinary meaning of its terms to the facts of the residential school policy? At first glance, the conceptual distinctions would appear less relevant than the straightforward legal interpretation of the text. Clearly, the Canadian government\u2019s residential school policy involved the forced transfer of children.[99]<\/a> As mentioned previously, however, it is the mens rea<\/em>, not the actus reus<\/em>, that is decisive. The acts must be committed with the requisite dolus specialis<\/em> identified in the chapeau<\/em> of article\u00a0II. In this regard, there is a substantial difference between the forced transfer of children with the intention to \u201cdestroy\u201d a group biologically as opposed to culturally. In the case of biological destruction, children are permanently separated from a group, with the intention to destroy the group\u2019s capacity to physically reproduce itself. In the case of cultural destruction, however, children are separated from a group temporarily or for a prolonged period with the intention to \u201cdestroy\u201d the group\u2019s cultural identity rather than its reproductive capacity. This is the exact case of residential schools.<\/p>\n It is on this basis, for example, that Bringing Them Home<\/em>, the report of the Australian National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, concluded that the Australian residential school policy constituted genocide under article\u00a0II(e) of the Genocide Convention<\/em>. The report states as follows:<\/p>\n When a child was forcibly removed that child\u2019s entire community lost, often permanently, its chance to perpetuate itself in that child. The Inquiry has concluded that this was a primary objective of forcible removals and is the reason they amount to genocide.[100]<\/a><\/p>\n In support of its conclusion, the report quoted the testimony of a mental health expert, Lynne Datnow, who stated that<\/p>\n [Children are] core elements of the present and future of the community. The removal of these children creates a sense of death and loss in the community, and the community dies too … there\u2019s a sense of hopelessness that becomes part of the experience for that family, that community.[101]<\/a><\/p>\n Aside from the rules of treaty interpretation, including recourse to the travaux pr\u00e9paratoires<\/em> of the Genocide Convention<\/em> as a subsidiary means of interpretation,[102]<\/a> the inclusion or exclusion of cultural genocide within the ambit of article\u00a0II(e) is itself a cultural question. It depends on differing cultural conceptions of what it means for a group to exist and survive. In light of the ambiguities that have been set forth, it is clearly one possible interpretation of that provision, albeit an expansive one. It should be noted that in its 1951 advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide<\/em>, the ICJ emphasized that the treaty reflected \u201ca common interest\u201d rather than \u201cthe maintenance of a perfect contractual balance between rights and duties\u201d of individual States.[103]<\/a> As a result, \u201c[t]he high ideals which inspired the I.\u00a0\u00a0 Physical Versus Cultural Genocide<\/h1>\n
II. Transfer of Children as Cultural Genocide?<\/h1>\n
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