Justice in Conflict

Last October, the Office of the Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools in Canada released its final report. It called for Canada to refer itself to the International Criminal Court and to create an Indigenous-led commission with a 20-year mandate to investigate disappeared Indigenous children. Doing so, Special Interlocutor Kimberly Murray concluded, would help to combat the existence of a “culture of impunity” and “settler amnesty” in Canada over atrocities committed in the Indian Residential School System (IRSS). Some might be naturally ask: what does that mean? Others may wonder: Does Canada really have an impunity problem? The answer is yes.

As readers will know, I was honoured to work for the Special Interlocutor’s Office from 2022 to 2024, applying international criminal law and international human rights law to the horrors perpetrated against children in the Residential School system. Part of that effort sought to understand the particular form of impunity that exists in Canada and articulate how it operates to deny Indigenous Survivors and communities avenues for accountability. We did this by studying amnesty laws, and applying insights from the use and study of amnesties to the Canadian settler colonial context. What follows is based on those findings.

Canadians and people around the world increasingly know that the atrocities and human rights violations committed against Indigenous peoples were not sporadic or the result of ‘bad apples’; they were structural and systematic, committed by specific perpetrators along with the bureaucratic machinery of the Canadian state. There is a belated but growing acceptance of this reality. In 2022, the House of Commons unanimously accepted that the Residential School System constituted genocide – and not ‘only’ cultural genocide. Similar findings were made by the National Inquiry into Missing and Murdered Indigenous Women and Girls in 2019. The indignities and atrocities that children were subject to are increasingly taught in schools across the country. The space of denial has been shrinking.

But it is not just the atrocities against Indigenous peoples that is structural and systematic. Impunity – the lack of justice for these atrocities – has also been structural and systematic. While a small number of perpetrators were held to account for sexual and physical abuse at Residential Schools, none of those most responsible for IRSS atrocities have ever been investigated or prosecuted. The very systems that produced the Residential Schools are still in place; instead of transferring children into the institutions, Indigenous people are today transferred in grossly disproportionate rates into the child state care system and into Canadian prisons and jails, sometimes referred to as “the new residential schools”.

The federal government acknowledges some harms and has offered compensation to some classes of victims and Survivors. But it also fights them tooth and nail in the courts, at enormous expense to Canadian taxpayers.

Canada has likewise closed avenues for justice and accountability that might otherwise be used by Indigenous Survivors and communities. Consider the examples of genocide and enforced disappearances.