[PEN-L:354] corrected part 3a judicial findings

["James Michael Craven" <cravjm@xxxxxxxxxxxxx>]

Judicial Findings From the Inter-Tribal Tribunal on Residential
Schools in Canada (Held June 12-14, 1998 in Vancouver, B.C.) Submitted
by James M. Craven, Tribunal Judge (c Copyright July 16, 1998, All
Rights Reserved)

On the Issue of Ethnocide Versus Genocide (Part 3)


     During the Tribunal, some of us were aware and all of us were
     made aware of the distinction between  ?ethnocide? and
     ?genocide? in Law and convention. Consistent with the importance
     of  ?mens rea? (state of mind and intent) in Tort and Criminal
     Law as well as Common Law where degree of intent and calculation
     is critical in classifying the level of criminality or liability
     (e.g. First-degree versus Second-degree murder versus
     Manslaughter), so ethnocide (unintended and non-coerced
     assimilation of a minority group into a broader group leading to
     the progressive destruction of the national minority group as a
     separate and identifiable minority group) is distinguished from
     genocide (intended and coerced assimilation and/or outright
     extermination of a national minority as a separate and
     identifiable group).
      It is recognized in conventional economic theory that especially
      under national capitalism and capitalist-driven globalization,
      that processes of homogenization and equalization through
      mobility of capital and labor (equalization of wage rates and
      salaries, rents, interest rates and profits) take place daily.
      Labor migrates from areas of relatively low wage rates and high
      unemployment to areas of relatively low unemployment and
      expected higher relative wage rates, thus driving down some and
      raising other wage rates. Capital migrates from areas of high
      risk and/or relatively low rates of expected profitability to
      areas of lower risk and/or relatively higher rates of expected
      profitability thus driving down some and raising other rates of
      profitability. Financial capital migrates from areas of
      relatively high risk and/or low real interest rates to areas of
      relatively low estimated risk and/or higher real interest rates
      thus driving down some and raising other real interest rates.
      Further, no only people, capital and financial capital migrate,
      so do value systems, paradigms, power relations and structures,
      religious creeds and core principles of whole systems.
             Creating and expanding global markets or markets in other
             regions of a nation, and expanded reproduction of  whole
             systems (power structures and relations, defining
             institutions, capital-labor relations, value systems,
             laws, rights, responsibilities, practices etc.) require
             conditioning and assimilating--through increasingly
             sophisticated technologies of mind control, persuasion
             and social systems engineering--minority nations and
             cultures to new values, tastes and preferences,
             lifestyles, religions and paradigms of the dominant and
             dominating classes and the systems they dominate. In
             other words, the core, inner and defining imperatives,
             institutions, power relations and structures, values and
             practices of capitalism, which make up the inner ?logic?
             and shape the dynamics and trajectories of capitalism on
             the ?micro? and ?macro? levels, lead inexorably to more
             and more homogenization, assimilation and destruction of
             national groups as separate and identifiable national
             groups--one form of ?Ethnocide.?

-2-

Personally, I feel that the reality of the inner and defining logic
and dynamics of capitalism leading inexorably to increasing
homogenization, assimilation and destruction of national groups and
cultures as separate and identifiable groups and cultures is perhaps a
major reason for the distinction between ?ethnocide? and ?genocide.?
When people ?choose? or are ?induced?--as opposed to having been
clearly forced-- to opt into a new and dominating culture, even on the
margins of that new dominating culture for career or other reasons,
free of having been forced to assimilate, or when combatants are
killed without the ?intent? to kill them because they are members of a
 national group targeted for extermination but rather because they are
combatants on the ?other side? of a conflict, this is considered
?ethnocide?. Who wants to say that the inner ?logic? and
derivative/inexorable dynamics and trajectories of capitalism lead to
genocide?

    I found it amazing that no one from the Canadian Government or any
    of the Churches bothered to challenge or repudiate the assertion
    that the practices and policies of the Residential Schools in
    Canada collectively and cumulatively constituted one of the
    instruments of Genocide against First Nations Peoples in Canada. I
    doubt, however, that this represents on their part, a fundamental
    stipulation to overwhelming and irrefutable evidence. In fact, in
    other forums and other periods of history, there have been clear
    attempts to spin various versions of the history of Residential
    Schools in Canada even to the point of asserting that
    assimilation, even if shown to be forced, would fall short
    constituting Genocide under the UN Convention on Genocide,
    International Law or other principles of Common Law of Nations.

     Both Canada and the United States (also in need of many Tribunals
     on Boarding Schools and other instruments of genocide) have
     consistently in the past and to this day resisted a full
     definition, examination and adjudication of the myriad
     dimensions, forms, crimes and effects of genocide. According to
     Chrisjohn et al.:

        ?The draft Genocide Convention proposals included an explicit
        statement
          proscribing cultural genocide (destruction of the specific
          characteristics of a group) as well as biological genocide
          (restricting births, sterilisation) and physical genocide
          (killing, whether quickly as by mass murder, or slowly as by
          economic strangulation). This proposal was immediately
          resisted by the United States (whose politicians were
          concerned that U.S. treatment of minorities would be in
          violation of such injunctions), and their efforts to derail
          those provisions were supported by Canada. As a result, the
          present version of the Convention is often taken as not
          dealing with cultural genocide.? (Chrisjohn et. al, 1997, p
          43)

      Chrisjohn et al. quoting from  ?Minorities and Human Rights Law?
      by Patrick Thornberry (London: The Minority Rights Group, 1991,
      pp. 13-14) note:

           ?The classification of genocide here included physical and
           biological genocide; -3-


            ...cultural genocide is not included ?except partially in
            the case of forced transfer of children?[our emphasis].
            ?Existence? is a somewhat circumscribed notion
             in this context. It is not genocide if a culture is
             destroyed but the carriers of culture are spared. A
             forcible assimilation is therefore not proscribed by this
             Convention: there is no such offense in international
             law.? (Quoted in Chrisjohn, et al. Ibid. pp43-44)

     This interpretation of the UN Convention (which Thornberry does
     not endorse but merely reports), that there is no such thing as
     ?cultural? genocide is absurd on the face of it. How can it be
     possible to forcibly remove children from their families and
     place and indoctrinate them into strange, isolated and foreign
     places without ?inflicting serious mental harm on the members of
     a group.?(violation of Article II of the UN Convention on
     Genocide) even if not accompanied by sexual and physical torture,
     starvation, medical experimentation, vilification of the culture
     and families of those being abducted etc.? And what kind of
     simplistic reductionism separates the importance of  physical and
     cultural dimensions of persons--?carriers of a culture?--such
     that total or even essential personhood or total or essential
     existence of an identifiable group is seen in terms of physical
     existence only? The originator of the term ?genocide?, Raphael
     Lemkin railed against this kind of reductionism in his original
     definition:

      ?Generally speaking, genocide does not necessarily mean the
      immediate
        destruction of  a nation, ?except when? accomplished by mass
        killing of all the members of a nation. It is intended rather
        to signify a coordinated plan of different actions aimed at
        the destruction of the essential foundations of the life of
        national groups, with the aim of annihilating the groups
        themselves. The objective of such a plan would be the
        disintegration of the political and social institutions, of
        culture, language, national feelings, religion, and the
        economic existence of national groups, and the destruction of
        personal security, liberty, health, dignity, and the lives of
        individuals belonging to such groups. Genocide is the
        destruction of the national group as an entity, and the
        actions involved are directed against individuals, not in
        their individual capacity but as members of the national
        group.? (Raphael Lemkin, ?Axis Rule in Occupied Europe?,
        Concord, NH: Carnegie
         Endowment for International Peace/Rumford Press, 1944, p. 79
         quoted in Churchill, 1994, pp.12-13)

     Lemkin observed two fundamental phases of genocide:

         ?Genocide has two phases: one, destruction of the national
         pattern of the oppressed group: the other, the imposition of
         the national pattern of the oppressor.? (Lemkin, Ibid. p 79
         quoted in Churchill, 1994, p. 14)

-4-

     How could phase two commence if genocide means only the
     destruction of the physical existence of members of the oppressed
     group as a means of destroying the physical existence of the
     whole group? Yet even part c of  Article II of the UN Convention
     on Genocide--?Deliberately inflicting on the group conditions of
     life calculated [the ?mens rea? issue] to bring about its
     ?physical? destruction in whole or in part?--is but one of the
     means--and criteria--for determining if genocide is going on.

     Commenting on the lessons and implications of the nazi Holocaust,
     Zygmunt Bauman wrote in ?Modernity and the Holocaust? (p. 27):

     ? ?Ordinarily? genocide is rarely if at all, aimed at the total
     annihilation of the group;
      the purpose of the violence (if the violence is purposeful and
      planned) is to destroy the marked category (a nation, a tribe, a
      religious sect) as a viable community capable of
      self-perpetuation and defense of its own self-identity. If this
      is the case, the objective of the genocide is met once 1) the
      volume of violence has been large enough
       to undermine the will and resilience of the sufferers, and to
       terrorize them into
      surrender to the superior power and into acceptance of the order
      it imposed; and 2) the marked group has been deprived of
      resources necessary for the continuation of the struggle. With
      these two conditions fulfilled, the victims are at the mercy of
      their tormentors. They may be forced into protracted slavery, or
      offered a place in the new order on terms set by the
      victors--but which sequel is chosen depends fully on the
      conquerors whim. Whichever option has been selected, the
      perpetrators of genocide benefit. They extend and solidify their
      power and eradicate the roots of the opposition.? (quoted in
      Chrisjohn et. al, pp. 45-46)

     In 1947, the Lebanese delegate to the U.N. committee that
     produced the Draft Convention on Punishment and Prevention of the
     Crime of Genocide noted:

         ?..what is at issue is the ?destruction of a [recognizably
         distinct] human group,
             even though the individual members survive.? (UN Doc.
             E/A.C. 25/S.R. 1-28)
           (Quoted in Churchill, 1994, p. 13)

     This led to a formulation in the initial U.N. Draft Convention on
     Genocide which focused not only upon mass murder or calculated
     extermination campaigns, but upon actions and policies which
     brought about: ?disintegration of the political, social or
     economic structures of a group or nation? and the ?systematic
     moral debasement of a group, people or nation.? ( Report of the
     United Nations Economic and Social Council, 1947, Part VI quoted
     by Churchill, 1994, pp. 13-14 from Robert Davis and Mark Zannis,
     ?The Genocide Machine in Canada: The Pacification of the North,
     Montral, Black Rose Books, 1973, p. 19)

     All of this led to the 1948 ?IV Convention On The Prevention And
     Punishment Of The Crime Of Genocide which specified:
-5-

a) Article I: Genocide is a crime under International Law whether
committed during times of peace or war;

b) Article II: Killing or causing serious bodily or mental harm or
inflicting conditions calculated to bring about physical destruction
or imposing measures to prevent births or forcibly transferring
children--of an identifiable group targeted for elimination-- is
genocide;

c) Article III: That shall be punishable under the Convention would
not only be genocide per se, but also conspiracy to commit, direct and
public incitement of , attempt to commit,  or complicity in, genocide;


d) Article IV: anyone committing genocide (acts under Article II) or
any of the acts under Article III, whether constitutionally
responsible rulers, public officials or private individuals shall be
punished;

e) Article V: Contracting parties undertake to enact, in accordance
with their respective Constitutions, necessary legislation to give
effect to the provisions of the Convention and provide effective
penalties against persons guilty of genocide or Article III acts
[note: does this mean that if the Constitution of a given country
sanctions genocide or acts considered genocidal, that the Country
would be unable to comply or reserve the right not to comply with
Article V or other articles of the Convention,  as it would not be
consistent with that country?s Constitution? Does this mean that
genocidal acts or policies--a crime under International Law--might be
seen as a matter of sovereign ?internal affairs? of a given country
and that domestic law would trump international law? This is the
so-called ?sovereignty? exception?  position taken by the United
States Government when finally signing the UN Convention in 1988--40
years after it was drafted--and  at present ( and was and is  the
position of the nazis and a whole host of other genocidal forces];

f) Article VI: Persons charged with genocide or Article III acts shall
be tried by a ?competent tribunal? of the State in the territory of
which the act was committed, or by such international penal tribunal
as may have jurisdiction with respect to those Contracting Parties
which shall have accepted its jurisdiction. [Questions: What happens
when one of those ?Contracting Parties whose ?competent State
tribunals or acceptance of jurisdiction of an international penal
tribunal is one of the entities against which allegations of genocide
or Article III acts is being made?; Which State, even a signatory to
the Convention, allegedly guilty of genocide or acts under Article
III, will likely provide its own Courts or accept the jurisdiction of
other Courts to hear allegations of genocide against itself?]

g) Article VII: Genocide and Article III crimes shall not be
considered as ?political crimes? for purposes of extradition and
Contracting Parties pledge themselves to grant -6-

extradition in accordance with their laws and treaties in force.
[Questions: What if the forces committing genocide are themselves
?Contracting Parties? and effectively constitute a large section of
whole State apparatus?; And in which case, how and to where or what
venue will they be extradited?; What if domestic laws and treaties in
force prevent extradition of parties who refuse to accept or define
genocide as an international crime or if those domestic laws and
treaties fail to include specific language allowing definition of
genocide and Article III extraditable acts?; What if the demand is
made to extradite from one Contracting Party engaging in genocide to
the jurisdiction of another Contracting Party engaging in similar and
even coordinated practices--e.g. U.S. and Canada?

h) Article VIII: ?Any Contracting Party may call upon the competent
organs of the United  Nations to take such action under the Charter of
the United Nations as they consider appropriate for the prevention and
suppression of acts of genocide or any of the other acts enumerated in
Article III.? [Questions: Again, what if the forces directing and
carrying out genocide or any Article III acts represent a large
section of the State of a Contracting Party Country?; Can the victims
of  genocide call upon the UN to intervene against the domestic State
which may even be one of the ?Contracting Parties??; And if the
victims can call for action against one of the Contracting Parties
alleged to be conducting genocide or Article III acts, what mechanisms
and venues exist for such allegations to be tried?;

I) Article IX: Disputes between Contracting Parties relating to the
interpretation, application or fulfillment of the Convention,
including responsibility of a State for genocide or for any of the
other Article III acts to be submitted to the International Court of
Justice. [Question: What if the State and Contracting party, alleged
to be guilty of genocide or article III acts, summarily refuses, as
does the United States on any matters other than commercial matters,
to accept the authority and jurisdiction of the ICE?]

j) Article XV: ?If as a result of denunciations, the number of Parties
to the present Convention should become less than sixteen, the
Convention shall cease to be in force as from the date on which the
last of these denunciations shall become effective.? [Question: What
if one of the Contracting Parties is not only a genocidal State, but
also a superpower powerful enough to apply political, economic,
military and other sanctions to obtain enough denunciations to cause
the Convention to cease to be in force? If genocide or Article III
acts are crimes under International Law and Common Law of Nations, why
should it take a minimum number of Contracting Parties to recognize
that fact and to keep the Convention in force?]

     The point is that even in the UN Convention all sorts of dodges,
     tricks with language, procedural games, summary
     non-compliance--even by a ?Contracting Party?--and other escapes
     from scrutiny and accountability are possible. This is especially
     true when

-7-
considers the extent of personal and systemic interests,
mystifications, future interests and possibilities associated with
genocide, past and present.

     The United States and Canada--said to be ?Children of a Common
     Mother?--have striking parallels in their own histories in many
     ways including in the operations, crimes, policies, intentions
     and effects of their Boarding Schools and Residential Schools
     respectively. It is interesting to note that the United States,
     the leading force in the establishment and execution of the
     Nuremberg Tribunals and other War Crimes and Genocide Tribunals
     that were instrumental in the development of the UN Convention,
     declined to sign on to the Convention for 40 years after it had
     been established; Canada finally signed on in 1952. According to
     Ward Churchill?s examination:

     ?The reason for this extensive delay resides primarily, as is
     revealed in the records
       of Senate debates on the Genocide Convention since it was
       referred to that body by President Truman in 1950, in
       congressional concern that a broad range of federal policies
       vis-à-vis minority populations in the U.S. might be viewed as
       genocidally criminal under international law.? ( Lawrence J.
       LeBlanc, ?The United  States and the Genocide Convention?,
       Durham, NC: Duke, University Press, 1991 cited in Churchill,
       1994, p. 16)

     Finally in 1988, in the closing days of the 100th Congress, based
     on the growing disconnect or contradiction between presuming to
     lecture other countries all around the world about basic human
     rights on the one hand and not having ratified participation in
     the UN Convention on the other hand, the U.S. Government enacted
     the ?Genocide Convention Implementation Act of 1988? (Title 18,
     Part I, USC) which contained language designed from its inception
     to provide language that would narrow the applicability of the
     Convention to the United States. Deposited with the U.N.
     Secretary General in 1988 along with the instrument of treaty
     ratification was a summarily asserted amendment called a
     ?Resolution of Ratification? or the ?Lugar-Helms-Hatch
     Sovereignty Package? which contained the following reservation
     Article I (2):

       [N]othing in the Convention requires or authorizes legislation
       or other action by the United States of America prohibited by
       the Constitution of the United States as interpreted by the
       United States.? (Quoted in Churchill, 1994, p. 17)

     Of course that is exactly the argument that the nazis made at
     Nuremberg. ?Nothing genocidal we did and  no orders we followed
     were prohibited by our legal authorities as we interpreted them
     and we ruthlessly guarded the sovereignty of and compliance with
     our own legal authorities.? In the U.S. Supreme Court decision in
     ?Reid v Covert? (354, U.S. 1, 1957) ruled that ?any treaty
     provision that is inconsistent with the United States
     Constitution would simply be invalid under national law? (Quoted
     in Churchill, 1994, p. 19) which was one of the authorities used
     in the so-called ?Sovereignty Resolution?.

-8-

     There is however, the matter of Article VI Section 2 of the U.S.
     Constitution that states that treaties are ?the supreme law of
     the land, and the judges in every State shall be bound thereby,
     anything in the Constitution or laws of any State to the contrary
     notwithstanding.? Further, there is the matter of Article 27 of
     the 1969 Vienna Convention on the Law of Treaties (to which the
     United States is not a signatory but has recognized as the
     ?definitive promulgation of the Laws of Nations with regard to
     treaty relations?--see Churchill, 1994, p.19 and  49) which notes
     that no country may invoke provisions of its domestic law as a
     reason for not abiding by its treaty obligations.

     I raise U.S. issues and laws not only because of the common
     sources of U.S. and Canadian law, or because of the parallels
     between the U.S. Boarding Schools and the Canadian Residential
     Schools, but also because some of the same summary exceptions and
     assertions of  ?right of non-interference in ?internal
     affairs??--including Genocide and Article III offenses have been
     raised by Canadian authorities as well by U.S. authorities.
     Through summary language, the intent, content and scope of the
     Convention can be circumvented. Effectively countries like the
     U.S. and Canada, under the banners of ?sovereignty? and ?right of
     non-interference in internal affairs.? can seek:

      ?to retain prerogatives to engage in or sanction policies and
      activities
       commonly understood as being genocidal, even while professing
       to condemn genocide.? (Churchill, Ibid. p. 18)

      During the setting up of the Nuremberg Tribunal, when the U.S.
      and other allies were accused of applying ?ex post facto? law
      (nullem crimen sine lege or nulla poena sine lege previa) and
      uncodified international legal principles to the Nazis, noted
      that although much of what needed to be examined at trial had
      never been formally codified in international law or officially
      accepted by Germany, nonetheless:

       ?International law shall be taken to include the principles of
       the law of nations
         as they result from the usages established among civilized
         people, from the laws of humanity, and the dictates of public
         conscience.? (Quoted in Churchill, 1994, p.22)

       Finally, there is the U.N. Charter to which the U.S. and Canada
       are signatories which asserts and is generally recognized that
       the U.N. may declare principles of international law binding on
       even non-member nations. Further:

       ?The concept of offenses against the [customary] law of nations
       (delicti juris
         gentium) was recognized by the classical text writers on
         international law and has been employed in national
         constitutions and statutes. It was regarded as sufficiently
         tangible in the eighteenth century so that United States
         Federal Courts sustained indictments charging acts as an
         offense against the law of...

-9-

              ...nations, even if there were no statutes defining the
              offense. Early in the nineteenth century it was held
              that criminal jurisdiction of federal courts rested only
              on statutes though the definition of crimes denounced by
              statutes might be left largely to international law.
              Thus ?piracy? as defined by the law of nations is an
              indictable offense in federal courts and all offenses
              against the law of nations are indictable at common law
              in state courts.? (Quincy Wright, ?The Law of the
              Nuremburg Trial? in Jay w. Baird, ed. ?From Nuremberg to
              My Lai, Lexington, MA. DC Heath and Co., 1972, p. 37,
              quoted in Churchill, 1994, p. 21)


         And yet as I write this, with one day left for the deadline
         for agreement of nations to form a standing World Court to
         deal with war crimes and genocide, the United States and some
         allies resist formation of such a court on the basis of
         summary assertions of ?sovereignty? leaving the impression
         that war crimes and genocide might be a matter of ?internal
         affairs? about which they have the ?right? to demand
         non-interference from other nations, the U.N. and presumably
         from the victims themselves.

     On the question of ?mens rea? or the requisite intent to forcibly
     assimilate and/or extinguish a whole people all sorts of
     deceptive arguments are made. One argument may be called the
     ?Zeitgeist? argument which goes something like this: as all forms
     of life are in process and development, so it is with people and
     nations; we cannot judge the commonly-accepted standards, moral
     codes and practices of past periods of history,  through the
     prism of today?s standards, moral codes and acceptable practices.
     To this we have to ask by whom were these past standards, moral
     codes and practices accepted? Whose perspective are we adopting
     with this line of argument? In Nazi Germany, there were indeed
     large groups of people who did not ?commonly accept? the
     prevailing moral codes, standards and practices: Jews, Gypsies,
     Homosexuals, Communists, Trade-Unionists, Peoples of Conquered
     Territories, Prisoners of War, etc. And does this then mean that
     all standards, morality and practices are essentially
     subjective--you like genocide and I don?t, just like you like to
     have a blue car and I prefer red?

     Then there is the
     ?perhaps-we-were-misguided-but-we-had-honest--as-opposed-to
     criminal-intent? argument. This is referred to as the ?Standard
     Account? by Chrisjohn et al.:
           ?Residential Schools were created out of the largesse of
           the federal government
             and the missionary imperatives of the major churches as a
             means of bringing the advantages of Christian
             civilisation to Aboriginal populations. With the benefit
             of late-20th century hindsight, some of the means with
             which this task was undertaken may be seen to have been
             unfortunate, but it is important to understand that this
             work was undertaken with the best of humanitarian
             intentions. Now, in any large organization, isolated
             incidence of abuse may       occur, and such abuses may
             have occurred in some Indian Residential Schools...
-10-

                 ...In any event, individuals who attended Residential
                 Schools now
              appear to be suffering lo

 James Craven
 Dept. of Economics,Clark College
 1800 E. McLoughlin Blvd. Vancouver, WA. 98663
 jcraven@xxxxxxxxx; Tel: (360) 992-2283 Fax: 992-2863
------------------------------------------------------------------------------------------------------
"Hitler's concept of concentration camps as well as the practicality
of genocide owed much, so he claimed, to his studies of English and
United States history. He admired the camps for Boer prisoners in
South Africa and for the Indians in the Wild West; and often praised
to his inner circle the efficiency of America's extermination--by
starvation and uneven combat--of the 'Red Savages' who could not be
tamed by captivity." ("Adolf Hitler" by John Toland, p. 702)

"Set the blood-quantum at one-quarter, hold to it as a rigid
definition of Indians, let intermarriage proceed...and eventually
Indians will be defined out of existence. When that happens,the
federal government will finally be freed from its persistent
Indian problem." (Patricia Nelson Limerick, "The Legacy of
Conquest: The Unbroken Past of the American West" p338)

*My Employer  has no association with My Private and Protected Opinion*
--------------------------------------------------------------------------------------------------------