Crimes Against Humanity & Genocide
In 1943, Raphael Lemkin first coined the term “genocide” and proceeded to define the term. Interestingly, what many people do not know is that Lemkin defined genocide in cultural terms rather than in terms of killing and mass murder. More specifically, Lemkin defined genocide as having two stages. The first involves the denial of an oppressed group’s national pattern; and the second stage involves the imposition of the oppressor’s national pattern.
When the International Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations in December 1948, Lemkin’s definition was included within the definition. Article 2 of the Convention codifies five genocidal practices and states that any of these acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, constitutes genocide. These five practices are: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; and, Forcibly transferring children of the group to another group.
That said, when I think about the issue of unknown and unstated paternity and the Indian Act, specifically about AANDC’s unstated paternity policy, or internal practice or whatever they want to call it, I realize it is in fact genocide. As many know, Indian status is delineated into two subsections of section 6 of the Indian Act: subsection 6(1) and subsection 6(2). While mothers registered under subsection 6(1) are able to pass on status to their children in their own right, this is not the case with mothers registered under subsection 6(2), also known as a weaker form of status. In the event that a father’s signature is missing or not found on a child’s birth registration form, the Registrar of AANDC assumes a negative presumption of paternity, meaning the Registrar assumes non-Indian paternity. This means that the children born of mothers registered under subsection 6(2) are vulnerable as their children are now considered to be non-status and thus not entitled to their treaty rights such as health care and education rights, First Nation band membership, and First Nation citizenship.
Many know by now that Indigenous women are victims of a higher rate of sexual violence such as incest, rape, gang rape, sexual slavery, and prostitution. This situation has been brought on through the oppression of colonization, the denial of our rights as Indigenous people, the denial of our land and resources, the residential and day school systems, and the criminalization of our cultures and Indigenous knowledge systems. In any sexist and racist society young Indigenous women are particularly vulnerable. Research has shown that 45% of the children born to status Indian mothers 15 years of age or younger do not have their father’s signature on their birth registration form. It is precisely at this moment where Canada’s practice falls within the parameters outlined in the International Convention on the Prevention and Punishment of the Crime of Genocide. Specifically, when a father’s signature is not placed on a child’s birth registration form and the mother is registered under subsection 6(2) of the Indian Act, AANDC’s unstated paternity policy transfers [read commits the genocide] these children from their First Nation community into mainstream Canadian society.
It is crucial that I point out that in the process of committing genocide Canada relies on language that blames mothers, as in “unstated paternity”. While AANDC’s unstated paternity policy targets Indigenous mothers for the lack of the father’s signature, there are many instances where a mother, for very legitimate reasons, may refuse to obtain a man’s signature, such as in the unfortunate situations of incest and rape. In addition, there are many situations where a father will not sign a birth registration form as they seek to avoid child support payments or because they need to preserve a previous relationship. Clearly, terms such as unreported, unnamed unacknowledged, unestablished, unrecognized, and unknown paternity are better signifiers of women’s realities.
AANDC’s genocidal policy continues to exist today despite the fact that section 15 of the Charter of Rights and Freedoms was put in place in 1982 and is supposed to protect Indigenous women from sex discrimination. Furthermore, this genocidal policy exists today despite the long-time heroic efforts of Mary Two-Axe Early, Jeannette Corbiere-Lavell, Yvonne Bedard, Sandra Lovelace, and Sharon McIvor. It is clear to me that legislative change, such as the changes to The Indian Act that took place in 1985 and 2011, is not an avenue for Indigenous women. Clearly the government of Canada has merely manipulated moments of legislative change in their favour: genocide.
Through their unstated paternity policy, Canada perpetuates the sexual violence imposed on Indigenous women and commits genocide on their children. Since 1985, when this AANDC policy emerged, I estimate that as many as 25,000 Indigenous children have been affected by this genocidal practice. By Dr. Lynn Gehl, Gii-Zhigaate-Mnidoo-Kwe – from: Genocide of 25,000 First Nation Children through Unstated Paternity Policy! 12/20/2012
– D R A F T –
CANADA – “INDIAN ACT”
CRIMES AGAINST HUMANITY AND GENOCIDE
That the government of Canada did between the years of 1876 and 2013, commit crimes against humanity, to wit, murder, extermination, enslavement, deportation, imprisonment, forced labor, torture, sexual violence, persecution, apartheid, assimilation, forced sterilization, and other inhumane acts and omissions committed against indigenous peoples including their children, constituting crimes against humanity according to customary international law and conventional international law and by virtue of constituting criminal acts according to the general principles of law recognized by the community of nations.
That the government of Canada did between the years of 1876 and 2013, act as an accessory to crimes against humanity, to wit, act as an accessory after-the-fact to murder, extermination, enslavement, deportation, imprisonment, forced labor, torture, sexual violence, persecution, apartheid, assimilation and other inhumane acts and omissions committed against indigenous peoples including their children, constituting crimes against humanity according to customary international law and conventional international law and by virtue of constituting criminal acts according to the general principles of law recognized by the community of nations.
That the government of Canada did between the years of 1876 and 2013, commit genocide, to wit, killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the physical destruction in whole or in part, imposing measures intended to prevent births, and forcibly transferring indigenous peoples including their children, as such, that, at the time and in the place of the commissions, constitutes genocide according to customary international law or conventional international law and by virtue of constituting criminal acts according to the general principles of law recognized by the community of nations.
The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes. In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.