The MMIWG report: A call for decolonizing international law itself

“The main lesson of the report may be more introspective and one that requires a slow reckoning”

“Despite their different circumstances and backgrounds, all of the missing and murdered are connected by economic, social and political marginalization, racism, and misogyny woven into the fabric of Canadian society,” Marion Buller, the chief commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls, said at the commission’s closing ceremony in Gatineau, Que., on Monday, June 3. (Handout photo)

By Frédéric Mégret
The Conversation

The National Inquiry into Missing and Murdered Indigenous Women and Girls has come to the conclusion that Canada has committed genocide against its Indigenous peoples. This is buttressed by a dense and sophisticated 46-page supplementary legal analysis appended to the report.

International lawyers hardly have a monopoly over what is or ought to be characterized as genocide — the issue is also the subject of debate among historians, social scientists and the general public.

Nonetheless, genocide as a legal term was the creation of international law. The recognition that it happened is legally significant.

The supplementary legal analysis is careful to emphasize that it cannot be the last word on the matter, but it does come up with a series of strong arguments that draw upon international law.

The United Nations’ Genocide Convention must be interpreted in the light of evolving customary international law: states can be liable for genocide as well as individuals; one can commit genocide through omissions as well as actions; responsibility can be incurred for ongoing and disparate acts; members of a group can be killed in a variety of ways.

In my opinion, some international lawyers who might otherwise be sympathetic to the plight of Indigenous groups in Canada could nonetheless hesitate to label what happened as genocide.

They may emphasize, for example, the non-applicability of the Genocide Convention for much of the period during which it was allegedly violated in Canada.

They may argue that only physical and biological killing of the group is covered by the convention. Or they may point out that Indigenous groups were purportedly not covered by the provisions of the Genocide Convention.

They may opine that simply because something is not classified as genocide doesn’t mean it’s not despicable or worthy of condemnation.

Missing the point

Such hesitations are understandable, but they miss the larger point.

The attempt to grapple with genocide in Canada by the MMIWG commission is about more than simply applying international law to the facts. It’s also about decolonizing the international law of genocide itself; that is, imagining what international law could be if it had not itself been implicated historically in colonization.

Just as it draws on the authority of international law, the MMIWG report is also a subtle indictment of it.

International law defined genocide narrowly after the Second World War and largely reflected the unique experience of the Holocaust. Colonial massacres before then—such as the genocide of the Herero in southern Africa— or even at the time, like the Sétif massacre in Algeria, were not considered genocide or crimes against humanity.

The focus on individual criminal responsibility in the last two decades may have further reinforced a sense that genocide is committed by a few “bad apples.”

A determination of genocide in Canada, therefore, is partly despite the UN genocide convention’s failure to include Indigenous or gendered groups as protected minorities, its emphasis on massacres and its insistence on individual intent.

The convention makes it structurally difficult to conceptualize genocide as being anything other than the sort of industrial killing or large-scale massacre illustrated by the Holocaust and the Rwandan genocide respectively.

But if we accept that international law — which, by the way, historically sanctified colonization — is not a sacred source of authority, but part of a particular, historically and geographically situated tradition, then we can begin to imagine how we might rethink genocide.

Decolonizing genocide

The MMIWG report suggests, in particular, that we ought to think of “colonial genocide” as different from “Holocaust genocide.” It is a genocide happening everywhere and all the time. It is a genocide that is at least as much the result of a slow war of cultural attrition than it is the product of massacres.

The intent is present but it is structural. Responsibility is not only singular, not the work of a few bad apples, but collective.

Paradoxically, then, the challenge is not only to denounce a genocide but to denounce the limitations of the international law on genocide.

It is to question the authority to define “genocide” and to foreground victims’ experience in defining it. It is to insist that colonial genocide is genocide too. It is to recognize what happened in Canada over several centuries for what it is, despite the law’s best efforts to beat around the bush.

To decolonize genocide, then, is to decolonize how we comprehend genocide and to reimagine what international law could stand for.

There has been much debate since the MMIWG report’s release about what its legal consequences will be. The Organization of American States has asked Canada to agree to the creation of a panel to further investigate the allegation of genocide.

This is helpful because it places the struggle for Indigenous rights within the broader scope of solidarity within the Americas. But the main lesson of the report may be more introspective and one that requires a slow reckoning with its analysis.

In the end, the conclusion of the MMIWG inquiry reflects the difficulty of, as the American writer Audre Lorde once put it, “dismantling the master’s house with the master’s tools.”

But in attempting to dismantle that house, the report makes it clear that the obligation to address genocide is, through and through, an obligation to decolonize.The Conversation

Frédéric Mégret is a professor at McGill University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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(15) Comments:

  1. Posted by Fake Plastic Tree on

    The allies and apologists for the latest mangling of language are certainly mounting an impressive and coordinated show of force on this issue. I suppose the imperative to pronounce fealty to this newly birthed doctrine and maintain alignment with the “right side of history” is felt most strongly among academics. They subsist, after all, in a market of exchange that swaps in moral currency that depends on a certain scarcity to maintain value. This, in part, explains how and why the standard boundaries of language and meaning are pushed further from what we would recognize. It’s an interesting game that is no open to discussion or debate, we are only to accept. Anything less is to invite ostracism or demonization. A good narrative always needs an antagonist, after all. Do you dare?

  2. Posted by Reality on

    Each of these reprinted “genocide” articles gets nuttier and nuttier. Academia has drifted so far from real life. These sheltered professors are so full of their own importance, that they don’t even realize how detached they are from the things they think they know all about.

    • Posted by too sheltered? no way on

      For what it’s worth, the globally respected law professor who authored this article was an active UN Peacekeeper during the Yugoslavian War… what would he know about genocide, right?

      It’s always the people writing anonymous comments who call others sheltered, its funny to see. What have you done, what have you seen, what do you know?

      • Posted by Paradox Pete on

        Too sheltered: when you ask “What have you done, what have you seen, what do you know?” You committing at least one of the following logical fallacies: the appeal to authority, which says an argument is only valid if it comes from an authoritative source, or, the genetic fallacy, which says the origins of an argument determine its validity. From a logical perspective, your questions are pointless. It’s also a curios thing that you take a shot at the original posters anonymity, while using it yourself.

        • Posted by Philosophy 101 on

          That is not correct. Argument from authority is a conditional fallacy. This means some arguments from authority are fallacious but other arguments from authority are legitimate.

          The test, usually, is whether the argument is made by someone in a position to know evidence related to the subject under discussion. If I say “I know I have leukemia because my plumber told me so,” that is a fallacious argument from authority. But if I say “I know I have leukemia because my doctor told me so,” that is a valid argument.

          Quote:

          “You appeal to authority if you back up your reasoning by saying that it is supported by what some authority says on the subject. Most reasoning of this kind is not fallacious, and much of our knowledge properly comes from listening to authorities.”

          https://www.iep.utm.edu/fallacy/#AdVerecundiam
          https://www.thoughtco.com/fallacies-of-relevance-appeal-to-authority-250336

          In this case, the author of the article is an recognized expert in international law. Since genocide has been recognized by international law as a crime since the 1940s, this author’s opinion is legitimate. It may not be the last word on the subject, but it is legitimate.

          Incidentally, you’re committing a pretty common logical fallacy yourself, the fallacy of consequence. That is when you object to an argument only because its conclusion is something that you do not wish to believe. LOL

          • Posted by Paradox Pete on

            Good and informative post, and a nice effort. But you should note I was not using the ‘appeal to authority’ fallacy to attack Dr. Mégret’s credentials or argument. Instead I meant to point out that a [possible] lack of credentials by the original poster did not negate his points (as admittedly facile as they were) as was implied in the first response. So, I imagined this an inverse of the appeal to authority. In hindsight I should have used the ad hominen fallacy in its place. Still, I would maintain that the genetic fallacy also applies.

            • Posted by Too sheltered? no way on

              This isn’t parliament, Pete.

              I called out someone calling a soldier who served in one of the worst recent genocides in recent history for being a “sheltered professor full of their own importance/drifted so far from real life/detached from the things they think they know about”.

              I pointed out that he had boots on the ground and a gun in his hand in a genocidal warzone that tore up multiple countries.

              None of that has anything to do with your fallacy obsession, because what you focused on is inconsequential to my reply, not a pillar of an argument I was making.

              It was a rebuttal to ignorant rambling that was barely on topic. Focus more on the context of the discussion and less on your eagerness to pretend this is debate club. The fact I am not posting my personal information doesn’t invalidate me highlighting the hilarity of some anonymous person ignorantly attacking the credentials of a respected professor, and respected soldier who has served in active genocides. It gave them a chance to elaborate and save face and share information about genocide they pretend to want to talk about while calling someone out for talking about the topic.

              The fact I asked why that person is able to confidently call out a former Peacekeeper and current professor, doesn’t invalidate what I said beforehand, it’s asking for clarification and was non-essential to my point: that the author is far from a sheltered academic who knows nothing about genocides.

              The problem with debate nerds in the wild is that you miss the point of communication while scanning for a reason to sound like you understand more than anyone by shoehorning in fallacies.

              I didn’t even use ad hominem, appeal to authority or genetic fallacies in my post, while you committed many yourself (tu quoque, etc): I made my point, which is adding information and correcting an ignorant post.

              Then I asked a question because I am curious about that anonymous person who is viciously and stupidly calling out someone. I wanted more information, that’s it.

              It gives them a chance to add more to the discussion and share information. It was non-essential and at the end of my actual point: this author is not sheltered and detached from the reality of genocide.

              (insert overly serious response here where you again throw every fallacy name at me in order to feel smart. Since you love to talk about fallacies but have shown you don’t know how to recognise them, go look up the definition for the ‘fallacy fallacy’, then re-read your post. Then go enjoy the fresh air and realise no one wants you to pretend internet comment sections are serious business with rigid rules, especially if you can’t even properly accuse people right.)

  3. Posted by All are responsible on

    Colonial genocide has been a result of warfare since ancient
    bible times, and still it continues.
    We are all colonisers in Canada, some came by land bridge
    from Asia, some by ocean from Europe.
    All people technically belong in the Rift Valley of Africa, so
    everyone in this day and age can legally call every one else an
    acommplice to cultural genocide.

    • Posted by Troubled idea on

      The problem with trying to make “everyone responsible” is that no one is responsible, and all you are left with is a meaningless platitude.

      • Posted by Opinions. on

        Who decides what is a worthy statement and what is a
        platitude ?
        A platitude is words or statements that have been used so
        often they have lost a lot of credibility.
        We hear a lot of platitudes in Nunavut.

        • Posted by No Moniker on

          Platitudes certainly abound in Nunavut. Think “IQ” principles; evoked with the consistency and fervor of a religious sacrament, yet how often do we see these practiced or implemented in a meaningful way? I don’t have an answer, but it seems like a good question to ask. In my place of work we have the IQ principles framed and hung on the walls, but if you were to make observations about how these are applied in our environment I think you would come up with very little (and what you did come up with would be more incidental than intentional). This to me qualifies as a platitude. So, when you ask who gets to decide I suppose we all have the opportunity to weigh statements about our personal or collective ideals against our experience. Perhaps there are other contexts in which IQ values are practiced and inform how people interact. I don’t know. I can only speak to my experience, which in this case is not universal (which is not to say this could not be measured on a larger scale). In a way this comes full circle to the debate over the word genocide as it is being applied in this context. As I see it the term has been chosen for its vivid imagery and emotional power. Who gets to decide? Here we have a relatively small group of people who are claiming it reflects their understanding of their experience. If we are to grant people the right to define their experience in whatever terms they like then we should also add a caveat that their definitions are relative to their understandings, and not necessarily universal either. I suspect this would not be considered a satisfying condition to them. Which is partly why we have seen these exhaustive pieces appearing in the news lately. For example, in this letter Dr. Mégret attempts to justify this new understanding by making various connections between the term and the conditions that have led to its use in this new way. Either way, he joins in a small chorus that is attempting to give this new definition the weight and appearance of consensus among the intellectual and cultural elite.

  4. Posted by Soothsayer on

    “To decolonize genocide, then, is to decolonize how we comprehend genocide and to reimagine what international law could stand for.”

    In other words, we want to change the scope of the term genocide. To do so we call on people to re-imagine it based on our understanding of it. So, from now on genocide is to be understood as an act that is “happening everywhere and all the time”. It is also one for which responsibility is collective, so we are all responsible for it.

    For me the scope here is simply too broad to leave anything meaningful to the term.

  5. Posted by Oracle on

    One poverty-stricken first nations, metis or inuit girl is too much
    These guys that prey on them should think twice about it as they are traumatized and extremely vulnerable.
    Foster kids, not even grown up yet; kids hitch-hiking as they cannot afford the bus fare and kids selling their bodies just to have something in their stomachs.
    They don’t deserve to die!

    These men are murderers, they killed them, then threw them away.

    Is that not racist and genocidal? Yes it is.

    The mindset of guys who see only a body to be used, a girl to have sex with; they wouldn’t let their own daughters out to do that.

    Genocide is the proper term for what has happened to these missing and murdered girls and nothing you can say will ever take that tag away.

    • Posted by Not even on

      “Is that not racist and genocidal?”

      No, it isn’t genocidal. It’s nothing like genocide. It’s called homicide. I get that using ‘genocide’ invokes a powerful and emotional reaction, and thus it’s utility, but it’s not accurate.

      Also, it is not always racist, though racism is a complex dynamic in this context.

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