Melissa McKay joins JiC for this guest post on responses to the Residential School atrocities committed in Canada. Melissa is an international criminal lawyer, with experience at the International Criminal Tribunal for the former Yugoslavia and Extraordinary Chamber in the Courts of Cambodia. Currently, with the Center for Human Rights, Gender, and Migration, she is assisting in monitoring the Massaquoi trial. A Canadian settler, she grew up on the traditional territory of the Anishinaabe and Métis People.

In late May, Tk’emlúps te Secwépemc First Nation announced that as many as 215 children could be buried on the site of the former Kamloops Residential School. Shortly thereafter, Sioux Valley Dakota Nation announcedthat it had identified a possible 104 graves at the former Brandon Indian Residential School. Cowessess First Nation then announced that it had discovered 751 unmarked graves near the former Marieval Residential School, and in late June, ʔaq̓am, a band from Ktunaxa Nation, announced that it had found another 182 unmarked graves near the former St. Eugene’s Mission School. Most recently, the Penalakut Tribe stated that it had identified more than 160 undocumented and unmarked graves near the former Kuper Island Industrial School.

These findings will continue. Canada’s genocidal acts through its residential school system are well known in the oral histories of Indigenous Peoples, and well-documented in Canada’s Truth and Reconciliation Report. The residential school system was implemented by the Canadian government and several different Christian churches and Catholic orders, such as the Missionary Oblates of Mary Immaculate, which operated 48 residential schools across the country, including the above-mentioned Kamloops, Marieval, St. Eugene’s, and Kuper Island. The last residential school closed in 1996, and criminal trials covering the acts that occurred within this genocidal system are too few and far between. 

The discovery of these grave sites has amplified the call for intervention through formal justice mechanisms:some individuals have called for the involvement of the International Criminal Court (ICC), while the Native Women’s Association of Canada has demanded charges be laid against the federal government and the churches that operated the schools, and failing that, has indicated a desire to involve the United Nations or the ICC. Others have requested that the Canadian Justice Minister appoint an independent special prosecutor with international observers. The Indian Residential School History and Dialogue Centre has also proposed a mix of domestic and international legal and human rights elements to address the mass graves, including the appointment of a Special Rapporteur.

A crucial starting point for any accountability efforts is the disclosure of the names of the alleged perpetrators. The Truth and Reconciliation Commission had access to names, but its Mandate protected their identities, leaving them off the record and out of history, thereby denying survivors and the general public the opportunity to hold these individuals accountable. Further, in 2016, the federal government spent 1.5 million dollars on private investigators to locate more than 5,000 individuals accused of crimes at residential schools, again, without disclosing names. Nevertheless, through the efforts of Indigenous groups, human rights advocates, and journalists, former priests who took part in the residential school system have been identified, at the very least, in Belgium and France.

It is promising that the Oblates have committed to work with the National Centre for Truth and Reconciliation to expedite access to school records. However, the names of perpetrators must not remain secret. Though some potential perpetrators of these crimes will now be deceased, it is reasonable to assume that some of those that left Canada and returned to Europe are still alive, and that the church orders and the Canadian government know where to find them. 

With the disclosure of names, Indigenous communities can better assess what type of accountability they wish to seek and against whom. This may involve the use of both domestic and international mechanisms, as some individuals and organizations have already called for. Universal jurisdiction presents an additional option for individual prosecutions against those who participated in the residential school system and are currently living outside Canada.

Universal jurisdiction allows States to prosecute individuals accused of international crimes, including torture, genocide, and crimes against humanity, who are on their territory, regardless of where the crimes are alleged to have occurred or the nationality of the perpetrators and the victims. It has been used to seek accountability for crimes from decades past – for example, Civitas Maxima and the Global Justice and Research Projecthave used universal jurisdiction to successfully advocate for prosecutions in States such as the UK, France, Switzerland, and Finland, against individuals responsible for crimes committed during the Second Liberian Civil War (1999-2003). Universal jurisdiction was likewise applied in trials against Nazis and their collaborators post-World War II – as well as more recently, such as Germany’s conviction of a Syrian government official for acts of torture and the deprivation of liberty committed in 2011 and 2012. Canada itself has codified this principle in the Crimes Against Humanity and War Crimes Act, and has brought two universal jurisdiction cases against individuals accused of involvement in the Rwandan genocide: R v Munyaneza and R v Mungwarere.

The application of universal jurisdiction may assist in securing prosecutions where Canada has failed to do so, be it through lack of political will, shortcomings in Canadian-led investigations, decisions by crown counsel to decline prosecutions, failures of the government to request extradition, or any other reason. Certain States, such as France, may be reluctant to extradite citizens, but willing to pursue investigations and trials under its own system, and so targeted advocacy for legal action against individuals based in such States should be considered. 

A universal jurisdiction trial for crimes committed as part of the residential school system may further serve as a shaming mechanism against Canada, and spur action at the domestic level. Canada has a long-standing international reputation as a human rights champion – a reputation that is far from justified given its ongoing treatment of Indigenous Peoples. Nevertheless, it is a reputation that many settlers consider intrinsic to national identity. For another State to open an investigation and/or prosecution against an individual for their role in Canada’s genocidal policies and practices, while Canada stagnates in its inaction, would be damning to this reputation on an international level.

The limitations of universal jurisdiction trials, however, should be considered before pursuing this strategy, as it may have more success in certain cases and States over others. The primary consideration is whether the affected community believes that this approach of pursuing a prosecution through a separate, faraway legal system, and possibly, within the context of another State that engaged in settler colonialism, would produce meaningful justice. Beyond that paramount question, there are also procedural matters.

In universal jurisdiction trials, as in any domestic criminal trial, States apply their domestic legislation as it existed at the time of the alleged acts. Thus, certain crimes (crimes against humanity in particular) may not have existed in the legislation at the relevant time in which the residential school system operated and the acts occurred, and the definition of certain crimes, including sexual violence, may have different elements than what we see today. This may render certain acts outside the scope of a particular case, which could leave individuals with a sense of incomplete justice. 

Language has been an additional barrier in universal jurisdiction trials, as proceedings are primarily conducted in the language of the court and aspects of the translation may be limited, as has been the case in the Koblenzand Massaquoi trials. Further, other States will face similar issues that Indigenous or Canadian-led investigations and prosecutions face, namely, the reliance on older evidence and the required cooperation of a church that continues to hide the records of its involvement in this genocide under its robes. Finally, the use of different legal systems necessarily means that there will be variance in the relevant legislation, jurisprudence, and rules of procedure regarding evidence. It will thus be important to assess the relevant State and the prospect that its criminal justice system could produce an outcome that the community finds meaningful – something that is not guaranteed in any criminal trial. 

Ultimately, any approach to accountability must be led by the relevant Indigenous community, and the diversity in what is viewed as meaningful justice across different communities must be respected. There is no perfect approach in seeking accountability for international crimes, but Indigenous Peoples should have access to all options in both international and domestic systems to pursue justice for these crimes as they see fit.