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The Search for Truth: Will the Call for Justice be Answered at the ICC? By: Rachel Lauder
The Search for Truth: Will the Call for Justice be Answered at the ICC?
By: Rachel Lauder*
“The time for gestures is over.”
Following the discovery of 215 unmarked graves of children’s remains at the former Kamloops Indian Residential School, a coalition of fifteen lawyers (the complainants) in Canada formally submitted a claim to the International Criminal Court (ICC) requesting that those responsible be investigated and prosecuted for crimes against humanity. The Rome Statute provides that the ICC has jurisdiction over crimes of the most severe nature concerning the entire international community. Further, the ICC investigates cases when states themselves are unwilling or unable to do so. Therefore, because of Canada’s inaction thus far, an investigation by the ICC is arguably the most effective route for substantive accountability and justice.
This analysis outlines the criteria to open an investigation for crimes against humanity at the ICC and demonstrates how the alleged cruelties of residential schools satisfy the numerous elements. Additionally, this analysis argues that the issue of residential schools in Canada is within the jurisdiction of the ICC to investigate and prosecute through either the suppression of evidence as an accessory after the fact or the expansive application of Canada’s domestic ratification of the Rome Statute.
Crimes Against Humanity
The Rome Statute broadly defines crimes against humanity as direct and serious attacks against a population using any of the fifteen offences listed such as murder, torture, and other inhumane acts causing great suffering. To proceed with an investigation, the ICC Prosecutor must first be satisfied that sufficient evidence exists pertaining to crimes of sufficient gravity within the court’s jurisdiction. Such sufficient evidence illustrates that crimes against humanity occurred, including the physical, contextual, and mental elements. If the complainants successfully demonstrate that all the elements of crimes against humanity have been satisfied, the Prosecutor then requires evidence of genuine attempts (or lack thereof) at national proceedings and whether an investigation is in the best interests of the victims and justice.
To satisfy the physical element, complainants must demonstrate that at least one of the physical attacks that comprise crimes against humanity is occurring or has occurred. Next, the contextual element requires that crimes against humanity be committed “as part of a widespread or systematic attack directed against any civilian population”. Unlike genocide, crimes against humanity do not require additional evidence of an identifiable target group. Rather, the focus remains on the number of civilians harmed, regardless of identity. Additionally, crimes against humanity do not encompass isolated incidents of violence. The Prosecutor must be satisfied that the context in which the violence occurred was planned and organized (i.e. government policy). Evidence of this can include either large-scale or widespread violence, measured by the number of victims or the geographic area in which the violence occurred. The contextual element can also include evidence of systematic violence, which considers the methodological approach of the attacks. Lastly, the mental element calls for evidence of knowledge that the attacks transpired.
For over a century, the Government of Canada (GOC), the Catholic Church, and other denominations (the Church) operated residential schools with the objective to “get rid of the Indian problem”. Approximately 150,000 Indigenous children were forcibly taken from their families and communities to unknown locations, often hundreds of miles away. Allegations of several brutalities ensued: numbers replaced original names, cultural practices and languages were prohibited, and disobedience was severely punished. Testimonies of survivors and research into the tragedies of victims in the Truth and Reconciliation Commission (TRC) reports highlight the physical, psychological, sexual, and spiritual abuse that repeatedly occurred. Accounts also detail infants being incinerated after being born to young girls who were sexually assaulted and impregnated by priests.
It remains unclear to the public exactly how many of these children perished, but they were arguably never intended to be found. The complainants’ submission to the ICC argues that the unmarked graves, along with survivor testimonies, are evidence of “murder, extermination, forcible transfer of a population, rape/sexual slavery, persecution against an identifiable group, enforced disappearance of persons, apartheid, and general inhumane acts”, demonstrating crimes against humanity. Approximately 4,100 deaths have been recorded, but the Honourable Murray Sinclair estimates that the Indigenous lives taken at the hands of government officials and the Catholic Church is five to ten times higher.
Determining the truth is difficult when the perpetrators continue to perversely withhold vital evidence. Health records, attendance lists, building inspections, and more would help piece together exactly what took place. Despite the TRC reports and the country’s first National Day for Truth and Reconciliation on September 30, 2021, the GOC refuses to release many materials in their possession. In fact, the Supreme Court of Canada recently held that individual records of residential school abuses can be permanently destroyed due to upholding wishes of “confidentiality assurance” if preservation is not requested by the victim. Therefore, an investigation by the ICC is arguably the most effective route for justice – possibly the only route.
The ICC investigates and prosecutes cases when member states themselves are unwilling or do not have the means to do so. Canada arguably has the means to answer this call to justice through the Crimes Against Humanity and War Crimes Act (CAHWCA); however, to lay charges, a police officer first requires the consent of the Attorney General. This conveniently positions the GOC to legally interfere. On the contrary, an ICC investigation is neutral and independent. The court has the power to order all parties to hand over every document and other types of evidence in their possession related to the alleged crime(s), and can demand cooperation of local police forces to enforce the order.
Although the ICC cannot generally prosecute crimes that occurred prior to 2002 as per the Rome Statute, the complaints submit that the ICC does have jurisdiction to investigate and prosecute through two avenues: violations of article 25(3)(d) of the Rome Statute or applying the CAHWCA’s expansive provision for the prosecutable time via article 21(1)(c) of the Rome Statute. Article 25.3(d) provides that any person that “in any other way contributes to the commission…a crime by a group of persons acting with a common purpose” can be held criminally responsible under the ICC’s jurisdiction. The conduct of the GOC and the Church following July 1, 2002 until present-day arguably involves the common purpose of suppressing and covering up crimes against humanity, which can in fact amount to crimes against humanity as an accessory after the fact. Therefore, the GOC, as well as the Church, are continuing to commit crimes against humanity by refusing to release evidence pertaining to residential schools in their possession.
Furthermore, the CAHWCA expands the prosecutable period for crimes against humanity that occurred prior to July 1, 2002, if inhumane acts or omissions committed against any population constitute crimes against humanity in accordance with international legal principles, regardless of whether the law was enforced at the time the acts occurred. The ICC is equipped under the Rome Statute to apply domestic legislation that would typically “exercise jurisdiction over the crime”, such as the CAHWCA, so long as domestic laws do not contradict the Rome Statute or any other international laws or norms. Therefore, as the complaints submit, the expansive scope of the CAHWCA arguably permits the ICC to investigate and prosecute crimes against humanity that were committed by the GOC prior to 2002.
An International Human Rights Leader or Loser?
It is beyond time for Canada to grapple with the horrific realities inflicted upon Indigenous peoples in residential schools. Canada was an early member of the ICC, the first state to formally ratify the Rome Statute,  and prides itself for having a global reputation as a beacon of human rights protection. Disobedience to disclose evidence that is knowingly in its possession is an international embarrassment and a violation of international law. Yet, government agencies, and other responsible parties, continue to hide and suppress crucial evidence necessary to grant Indigenous survivors and victims justice. Without the domestic will to initiate proceedings, a formal ICC investigation presents the unique international opportunity to answer the call to justice and finally obtain accountability.
* Juris Doctor candidate at the University of New Brunswick.  Brendan Miller is lead counsel for the coalition of fifteen lawyers in Canada who submitted the claim at the International Criminal Court. See Brendan Myers Miller, “Coalition of Canadian Lawyers Demand International Criminal Court to Investigate Discovery of 215 Dead Indigenous Children in Kamloops, BC” in Firm News, Foster LLP, online: <https://www.fosterllp.ca/blog/coalition-of-canadian-lawyers-demand-international-criminal-court-to-investigate-discovery-of-215-dead-indigenous-children-in-kamloops-bc>.  Complainants’ submission to the Office of the Prosecutor (June 3, 2021), online: <https://www.aptnnews.ca/wp-content/uploads/2021/06/ICC-Complaint_June-3-2021.pdf>.  UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No 92-9227-227-6, online: <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf>.  Ibid art 51.  Ibid art 7.  United Nations Office on Genocide Prevention and the Responsibility to Protect, “Crimes Against Humanity”, online: <https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml>.  Supra note 6.  Ibid.  Crimes against humanity are outlined in article 7(1) to include: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; grave forms of sexual violence; persecution; enforced disappearance of persons; the crime of apartheid; or other inhumane acts.  Supra note 3 art 7(1).  Supra note 6.  Supra note 3 art 7(2)(a).  Supra note 6.  Supra note 3 art 7(1).  Robert L McDougall, “Duncan Campbell Scott”, The Canadian Encyclopedia (published Aug 11, 2008, but last updated Jan 18, 2018), online: <https://www.thecanadianencyclopedia.ca/en/article/duncan-campbell-scott>.  Megan Grant, “International Criminal Court called on to investigate Kamloops residential school findings”, CBC News (June 3, 2021), online: <https://www.cbc.ca/news/canada/calgary/calgary-canadian-lawyers-icc-residential-school-investigation-1.6052054>.  Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), online: <https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf>.  Ibid.  Ibid. See also Ian Austen & Dan Bilefsky, “Hundreds More Unmarked Graves Found at Former Residential School in Canada”, New York Times (June 24, 2021), online: <https://www.nytimes.com/2021/06/24/world/canada/indigenous-children-graves-saskatchewan-canada.html>.  Supra note 2.  Ibid. The Honourable Murray Sinclair’s estimate of 5-10 times higher amounts to anywhere between 20,500 and 41,000 deaths.  September 30th was previously referred to in Canada as “Orange Shirt Day”.  Canada (Attorney General) v Fontaine, 2017 SCC 47. See also Kathleen Harris, “Indigenous residential school records can be destroyed, Supreme Court rules”, CBC News (Oct 6, 2021), online: <https://www.cbc.ca/news/politics/indian-residential-schools-records-supreme-court-1.4343259>.  Crimes Against Humanity and War Crimes Act, SC 2000, c 24.  Supra note 16.  Hilary Beaumont, “Will Canada face criminal charges for residential school abuses?”, Aljazeera News (Jul 8, 2021), online: <https://www.aljazeera.com/news/2021/7/8/will-canada-face-charges-residential-school-abuses>.  Supra note 3 art 24(1).  Supra note 3 art 25(3)(d).  Supra note 2.  Slav Kornik, “Canadian lawyers want Indigenous children burial site investigated as crime against humanity”, Global News (June 3, 2021), online: <https://globalnews.ca/news/7919607/calgary-lawyer-coalition-indigenous-children-burial-site/>.  International legal principles under section 3 of the CAHWCA includes “customary international law, conventional international law, or by virtue of its being criminal according to the general principles of law recognized by the community of nations”.  Supra note 25 s 3.  Supra note 3 art 21(1)(c).  Geoffrey P Johnston, “Canada must investigate crimes of genocide”, The Kingston Whig Standard (June 4, 2021), online: <https://www.thewhig.com/opinion/canada-must-investigate-crimes-of-genocide>.