Medical Experiments, Honouring the Apology and Crimes Against Humanity

Recent revelations about nutritional experiments in residential schools (here: http://www.cbc.ca/news/canada/nova-scotia/story/2013/07/17/mb-aboriginal-children-nutritional-experiments-reax-national.html).

These are matched with apparently well-known (not by me) experiments on tuberculosis (here: http://aptn.ca/pages/news/2013/07/24/first-nation-infants-subject-to-human-experimental-work-for-tb-vaccine-in-1930s-40s/) and apparently even ear infection medications (here: http://www.cbc.ca/news/canada/north/story/2013/08/08/tby-documents-show-kenora-residential-school-ear-experiments.html).

It is beginning to appear that indigenous children were involuntarily used in a range of medical experiments throughout the residential schools era. This probably shouldn’t come as a shock to anyone, including me, but it does.

Allegations that the federal government is not honoring the residential schools apology, or the Indian Residential Schools Settlement Agreement, among other things, by failing to turn over documents in an expeditious fashion, are generating a fair amount of outrage. I guess really on top of all these other revelations.

It should go without saying that failing to honor the Apology or the Agreement could be construed as a form of revictimization. What is one to do if they feel the Crown is not honoring the Apology or the Agreement?

An International Criminal Issue?

I have written in a past post on genocide (here: http://wp.me/s1AYud-genocide) that if people believe that they have evidence of an international crime, that they should action it. I also wrote that the Agreement, and the Truth and Reconciliation Commission, could be considered important forms of redress (or not, I mean, how does one redress genocide – it’s a big question).

So here I’ll delve into a couple of possible tactics to seek investigation or redress for Canada’s actions during the residential schools era. The first option would be to complain to the International Criminal Court. I am most certainly not an expert in International Criminal Law.

However, it seems very likely that residential schools era fulfilled the technical requirements for genocide (detailed in my earlier post) or at least crimes against humanity. One issue with genocide, as I understand it, is intent. While I have reservations about whether the requisite intent existed, I have heard plenty of assertions of what several government officials said about residential schools policy and the Indian Act itself, which, if true, would likely demonstrate intent.

Crimes Against Humanity would seem even easier to demonstrate. Such Crimes are defined by Article 7 of the Rome Statute (http://untreaty.un.org/cod/icc/statute/romefra.htm) as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. “

It would seem the residential schools era (not even just the schools themselves!) would fulfill several of these criteria. For real legal eagles out there, Article 7(2) provides slightly more clarification of some of these criteria. Though I’m no expert in this area of law, I understand the distinguishing (perhaps dominant) characteristic of Crimes Against Humanity are not so much any specific acts, but rather a consistent and widespread pattern of discrimination.

It would be rather fascinating to me to engage in a discussion over whether any contemporary practices of Canada fit into any of these criteria. I would think there are several possibilities which could be worth exploring – a valuable exercise to the extent one thinks that the socio-economic gaps between aboriginal peoples and non-native citizens are the result of deeply ingrained and widespread practices (though that pesky intent requirement likely remains).

I guess one could attempt to raise these issues with the Prosecutor of the International Criminal Court. One difficulty is the Rome Statute did not come into force until 2002 or so, and it is generally difficult to impugn violations of human rights which occurred prior to the coming into force of an international treaty. One might argue that by failing to investigate (by dragging its feet on disclosure of documents), Canada is actually engaged in a ‘continuing violation’ of human rights. The Prosecutor would be required to at least examine the merits of such a communication, and complainants could conceivably state as much to the press.

Kevin Jon Heller of the Opinio Juris Blog (an awesome blog, by the way) basically deconstructs such an argument here: http://opiniojuris.org/2007/08/06/icc-submissions-and-the-continuing-violation-non-doctrine/. In pretty devastating fashion. I think he’s right (not just because he actually knows something, quite a bit, about the ICC and I don’t) – international human rights law is a different animal than international criminal law. For example, in general, criminal law frowns on ‘retroactive application’ to events which predated promulgation of the law. For a host of good reasons.

Indeed, the Prosecutor’s own FAQs (hardly a legal authority, but I think its pretty persuasive) states, “The Prosecutor has jurisdiction only over crimes committed after 1 July 2002, when the Rome Statute entered into force.” (you can check it out here: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/faq/Pages/faq.aspx).

This leads me to believe that trying to push a residential schools argument through the ICC would likely be perceived as an abuse of process.

Of course, contemporary situations are another matter entirely. To push these, one would need to make a good faith attempt to have such crimes prosecuted in Canada before approaching the ICC. And probably have a pretty solid record on the nature of those violations since 2002.

Notwithstanding the limitations of using the ICC for residential schools era crimes, it is incredibly helpful to think of and frame allegations of genocide in the context of internationally accepted definitions of the term – as well as in terms of crimes against humanity. The reason is that the Residential Schools Settlement, and the Truth and Reconciliation Commission, aren’t simply the outputs of a massive class action – they are linked to an international crime (albeit one apparently impossible to prosecute in the ICC).

Inter-American Commission on Human Rights

The jurisprudence of the Inter-American Commission and the Inter-American Court (Canada hasn’t ratified the American Convention on Human Rights, so don’t plan on going to the Court anytime soon) seem very friendly to indigenous peoples. Both the Commission and the Court have issued numerous and groundbreaking judgments related to indigenous rights and to practices of states, some of which could be characterized as international crimes (for example, massacres).

Residential Schools would likely offer the Inter-American Commission something it rarely sees – a massive, protracted (over decades), and mechanized (institutional) suite of policies and practices allegedly (I still haven’t seen this proof) put in place to ‘kill the Indian, save the child’. These policies and practices resulted in any number of violations of human rights (even by the ‘standards of the day’).

The crux of a case before the Inter-American Commission may not need to rest on the actual violations themselves, but rather on the state’s duty to investigate. One of the innovations (well, probably) of the Inter-American system is that states have a positive obligation to investigate violations of human rights. In the Moiwana case (http://www1.umn.edu/humanrts/iachr/C/124-ing.html): an interesting case for a few reasons. Mainly, I like it because it articulates a duty to investigate in a relevant context. However, a close reader will note that the massacre at issue in Moiwana occurred prior to the state ratification of the relevant Convention. The Court concluded (at para 39) that, “in the case of a continuing or permanent violation, which begins before the acceptance of the Court’s jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.”

Moiwana may not be the foundational case in terms of the duty to investigate, or in terms of continuing violations, but it provides pretty solid statements on both issues.

The case articulates two principles. First, in the face of allegations of human rights violations, states are obligated to investigate and prosecute the violators. Second, that violations which had commenced prior to the state’s assumption of international obligations are subject to this duty to investigate. Indeed, under the Inter-American system, states may even have an obligation to provide redress for violations which occurred prior to accepting international obligations which are of a continuing or permanent nature.

Where the International Criminal Court likely lacks jurisdiction, it appears the Inter-American may be positioned to consider allegations that Canada is not investigating claims of medical experimentation (or, for that matter, other claims). Even better, the Inter-American Commission on Human Rights offers dispute resolution procedures which, at least, lead to facilitated dialogue between the state and the petitioners.

Given that there exists a live dispute over disclosure obligations, linked to a pretty comprehensive settlement agreement, it seems that the Inter-American Commission might well facilitate a friendly settlement – if nothing else to preserve the integrity of the residential schools agreement.

It is also possible that if the federal government has abandoned the residential schools agreement, admittedly an unlikely possibility (it is such a historic settlement), then the Inter-American Commission might be inclined to investigate the underlying violations which led to the settlement itself, in addition to Canada’s failure to investigate and remedy those violations.

An interesting possibility. Genocide and Crimes Against Humanity have been international crimes (and violations of international human rights) for decades. The difficulty indigenous rights advocates will encounter in actioning claims are primarily procedural. While this is frustrating, there are so many different procedures available to First Nations that one would think these issues could be raised in at least one of them. Canada’s failure to honour the residential schools apology and the settlement agreement may provide an opportunity to address broader issues with Canada regarding residential schools and the assimilation policies of Canada during the same era.