There is no real evidence of graves at Kamloops Residential School — let alone "genocide". Why would lawyers expect the International Criminal Court to believe it?
By Michael Melanson & Nina Green
Dr. Eboe-Osuji, 4th President, International Criminal Court
AT THE INAUGURAL National Gathering On Unmarked Burials held in Edmonton in September 2022, indigenous delegates from across Canada were anticipating the address of former International Criminal Court (ICC) president and judge, Dr. Chile Eboe-Osuji. A year and half after the sensational press release on May 27, 2021 in which Chief Rosanne Casimir of the Tk'emlúps te Secwépemc (Kamloops) First Nation made the false claim that “the remains of 215 children” had been found on the grounds of the former Kamloops Indian Residential School (KIRS), attendees were expecting to hear Dr. Eboe-Osuji announce that the claim of a mass grave uncovered at KIRS would result in an imminent ICC investigation.
Instead, Dr. Eboe-Osuji informed the audience that, “There is no pathway to the International Criminal Court for the situation of the historical Indian residential school system in Canada.” One disappointed Chief in attendance, Derek Nepinak, mused on social media: “Where does that leave us? How do we find justice in the history of the Canada idea?” Like many at the National Gathering, Nepinak was certain that genocide had been committed; the only question was what the ICC would do about it.
It should have been no surprise to Chief Nepinak that the ICC would decline to investigate, as the matter had been settled a year earlier.
On June 3, 2021, only a week after the KIRS story broke on May 27, 2021, a group of 12 Canadian lawyers sent a letter to Karim Khan, Chief Prosecutor of the International Criminal Court, requesting that he undertake a preliminary examination on his own initiative (proprio motu) pursuant to Article 15 of the Rome Statute of the International Criminal Court for the purpose of determining whether crimes against humanity had been committed by the government of Canada and by the Vatican (as the representative of the Catholic religious orders which ran a large number of the residential schools):
“The Complainants submit the deaths, mass unmarked grave and general treatment of the 215 deceased children constitute crimes against humanity”.
Anyone even slightly familiar with the subject of Canada’s Indian residential schools would probably wonder why the twelve lawyers chose to frame their complaint in terms of crimes against humanity rather than genocide, since the allegation that the residential schools constituted genocide has been bandied about indiscriminately for years, and appears to have been widely accepted as fact.
Reaching a conviction in the court of public opinion is easy, though; all that is required is credulity on the part of the media and the general public. Proving the case for genocide in an international court of law is an entirely different matter, and until these twelve lawyers filed a complaint with the ICC, no serious effort had been made to bring Canada into the docket at The Hague.
Problems involving the ICC’s jurisdiction
The International Criminal Court, established under the Rome Statute on July 1, 2002, has jurisdiction over genocide and crimes against humanity. However its jurisdiction is described in the Preamble and in Article 1 as “complementary to national criminal jurisdictions,” and under Article 17 1. (a) the ICC will decline to exercise jurisdiction where:
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.
In other words, the primary responsibility for prosecuting individuals for genocide and crimes against humanity within Canada rests with Canada. The lawyers drafting the complaint were forced to specifically make that admission:
The principle of complementarity governs the exercise of the Prosecutor and ICC’s jurisdiction. The Rome Statute recognizes that States have the primary responsibility to prosecute crimes against humanity domestically.
The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings. Moreover, there are limits on the number of prosecutions the ICC, a single institution, can feasibly conduct.
In drafting the complaint, the lawyers thus realized at the outset that they faced several major roadblocks.
First, the allegation which has been circulating for some time is that Canada is guilty of genocide, and the expectation among activists has been that Canada would eventually be put on trial for genocide. However Art. 25 of the Rome Statute does not give the ICC jurisdiction over nation states. The Rome Statute only gives the ICC jurisdiction over individuals (“natural persons”), who are “individually responsible and liable for punishment.” The lawyers could therefore not file their complaint against Canada. They had to file the complaint against individuals, and since they lacked even a single name, they were forced to file the complaint against unnamed “agents, employees and actors” of the Canadian government and the Vatican:
The Complainants are lawyers in the Member State of Canada. The accused/suspects are agents, employees or actors working for the Government of Canada (“GOC”) and the Government of Vatican City State/Holy See (“Vatican”). These agents, employees and actors would be specifically known by the GOC and Vatican via their respective records.
The Complaint is regarding the recent discovery of a mass unmarked grave of 215 Indigenous children who were under the forced care of the GOC and the Vatican. . . .
Secondly, as noted above, under the principle of complementarity the primary responsibility for prosecuting individuals for crimes against humanity rests with Canada, not the ICC.
Thirdly, and most importantly, under Art. 11 of the Rome Statute, the International Criminal Court has no jurisdiction over crimes committed before July 1, 2002, the date on which the Statute came into force.
Since all the Indian residential schools closed prior to 2002, the lawyers had to devise a way to get around the non-retroactivity of the Statute which created the ICC.
It appears to be this third problem which caused the twelve lawyers to drop the idea of alleging genocide. They opted instead to pursue an allegation of crimes against humanity because the latter charge allowed them to argue that Canada’s own Crimes Against Humanity and War Crimes Act provided a loophole by which the non-retroactivity provision in the Rome Statute could be circumvented.
As evidence that crimes against humanity had been committed, the lawyers cited the alleged “mass grave” in Kamloops. They stated that “The 215 children found in the mass grave were undocumented deaths of missing children” and claimed that thousands of children were missing from residential schools:
In 2015, over 6 years ago, the Truth and Reconciliation Commission (TRC) chaired by the Hon. Murray Sinclair stated that though the recorded number of children who died in residential schools in Canada was only approximately 4100, the number would likely be between 5 to 10 times higher.
Later in the complaint they speculated that there might be mass graves all across Canada whose existence had been covered up by both the Canadian government and the Vatican:
The Complainants submit the deaths, mass unmarked grave and general treatment of the 215 deceased children constitute crimes against humanity. The Complainants also submit it is likely other such mass graves exist elsewhere in Canada in or around other residential schools and have been covered up by the GOC and/or Vatican, their agents, employees, or actors, collectively or individually, just as the mass grave at Kamloops Residential School was.
To bolster the case, the lawyers alleged that almost every one of the eleven crimes against humanity specified in Art. 7 of the Rome Statute had happened to these children:
“What happened to these 215 children, and likely others in other mass graves in and around residential schools throughout Canada, is evidence of murder, extermination, forcible transfer of a population, rape/sexual slavery, persecution against an identifiable group, enforced disappearance of persons, apartheid, and general inhumane acts of intentionally causing great suffering, or serious injury to the body or to mental or physical health. In short, the 215 children were victim [sic] of crimes against humanity at the hands of the agents, employees, and actors of the GOC and Vatican. There are likely far more such victims beyond these 215 children.”
A way around the jurisdiction problem?
The sensational and unsubstantiated claims by the twelve lawyers that there could be mass graves all across Canada and that the Canadian government and the Vatican had committed virtually every possible crime against humanity specified in the Rome Statute were insufficient to authorize ICC intervention in light of the provision in the Statute that the ICC had no jurisdiction over crimes committed prior to July 1, 2002.
To persuade the ICC to intervene in spite of this very specific limitation on its jurisdiction, the lawyers advanced two tenuous arguments.
First, they relied on the principle of complementarity which permits the ICC to exercise jurisdiction where a nation state is unwilling to do so. The lawyers speculated, on no evidence, that the Canadian government and the Vatican knew all along about the graves, had a history of suppressing knowledge of the graves, and despite the passage of several decades and despite personnel changes in both the Canadian government and the Vatican, were collectively continuing to conceal the existence of the graves to the present day. They argued that under Article 25. 3. (d) of the Rome Statute the Canadian government and the Vatican constituted “a group of persons acting with a common purpose” who collectively covered up alleged crimes against humanity after July 1, 2002, thus giving the ICC jurisdiction to act under the principle of complementarity because Canada was not only refusing to act but was actively covering up the crimes. This allegation of a continuing coverup also brought the complaint within the period in which the ICC could legitimately exercise jurisdiction under the Rome Statute:
“It is respectively submitted that those within the GOC and Vatican that covered up and suppressed the crimes against humanity in this Complaint, continued to do so on and after July 1, 2002 and thereby contributed to the commission of the crime against humanity after July 1, 2002 as accessories after the fact.”
Secondly, the lawyers invoked section 3 of Canada’s own Crimes Against Humanity and War Crimes Act (CAHWCA), claiming that it authorizes the prosecution of crimes against humanity before July 1, 2002, and the ICC could therefore exercise jurisdiction because Article 21. 1. (c) of the Rome Statute permits the ICC to apply the law of the state which would normally have jurisdiction over the crime under the “complementarity” principle, in this case, Canada:
Further, the Canadian statute implementing the Rome Statute domestically, the Crimes Against Humanity and War Crimes Act (CAHWCA), at s. 3 permits the prosecution of crimes against humanity before July 1, 2002 for the “persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission”.
The lawyers argued that:
Under Article 21. 1. (c) of the Rome Statute, the ICC may apply the national laws of States that would normally exercise jurisdiction over the crime, provided that those laws are not inconsistent with the Rome Statute and with international law and internationally recognized norms and standards. Arguably, via Article 21. 1. (c), the expansion of the prosecutable time period of crimes against humanity created by the GOC via s. 3 of the CAHWCA to earlier than July 1, 2002 could apply to the time period when the crimes against humanity committed against the 215 children took place.
They summed up:
As such, with respect to jurisdiction over the time of the crime against humanity in the herein Complaint, the ICC potentially has jurisdiction in two respects:
(i) Conduct of the actors, employees, and agents of the GOC and Vatican in suppressing and covering up the crimes against humanity on and after July 1, 2002 and therefore contributing to the crime against humanity with the common purpose of covering it up as an accessory after the fact, in violation of Article 25 3. (d) of the Rome Statute; and
(ii) The application of the CAHWCA which expands the prosecutable time period to earlier than July 1, 2002 for prosecution of crimes against humanity, as incorporated by reference via Article 21. 1. (c) of the Rome Statute.
A decision by the ICC
On June 7, 2021 the ICC officially informed the twelve lawyers that it had received the complaint. The letter included this caveat:
Please note this acknowledgment letter does not mean an investigation has been opened, nor that an investigation will be opened by the Office of the Prosecutor.
Five months went by before it was reported in mid-November 2021 that the ICC had declined to investigate on the grounds that the ICC lacked jurisdiction. The ICC’s letter has never been made public.
The real reason for the complaint?
Why did the twelve lawyers file a complaint when it was obvious from the outset that the ICC lacked jurisdiction to intervene? As Kirsten J. Fisher pointed out in an assessment of the complaint on June 12, 2021, a week after it had been filed:
To those who know more than the average citizen about the ICC, the request may seem detached from reality and the situation seems initially obviously beyond the jurisdiction of the court.
However, as Fisher also noted, it is not unusual for requests for ICC intervention to be made solely for political reasons and for the publicity they generate:
Requests for proprio motu investigations into ICC crimes (crimes against humanity, war crimes, genocide) committed in ICC member states can be made by anyone, and many such requests cover acts not within the court’s jurisdiction, either because the requestors do not understand the limited jurisdiction of the court or their only goal is the attention such a public request could garner, for political reasons and/or to highlight the seriousness of concern for the requestors.
A search of the International Crimes Database confirms that a very large number of complaints have been filed since the coming into force of the Rome Statute. Alexander Heinze and Viviane E. Dittrich point out that the list includes “virtually every conflict in the world”:
Virtually every conflict in the world, from massive ones in Syria and Yemen to relatively lesser known disputes inside Zambia, India, and Nicaragua (to name just a few), has spurred calls for ICC involvement. There have been pleas for the ICC to intervene in con-flicts that have spanned generations, such as India and Pakistan’s fight over Kashmir, recently uncovered deaths [sic] of indigenous children in Canada, as well as the multistate dispute over control of the South China Sea. Advocates filed a complaint at the ICC for alleged crimes perpetrated by Chinese authorities against Muslim Uighurs minorities held in re-education camps, generating global headlines. Even the COVID-19 pandemic has spawned complaints filed at the ICC against Chinese and Brazilian leaders.
Considered in that light, the rushed filing by Canadian lawyers appears even more problematic.
Did the lawyers do their due diligence?
When the complaint was filed on June 3, 2021, the only evidence which had been presented to the public that there were 215 children buried in a “mass grave” in a former apple orchard at KIRS was a claim in a press release that ground-penetrating radar (GPR) had detected them. Out of hasty credulity, some media outlets initially reported that a “mass grave” had been found, and the twelve lawyers filed their complaint on the basis of that false information. There was a public correction of the “mass grave” claim by Chief Casimir at a virtual press conference on June 4, 2021, the day after the lawyers had sent their letter to Karim Khan at the ICC. According to Chief Casimir, there was no “mass grave”: the soil disturbances detected by GPR were somewhat dispersed and isolated from each other, allegedly indicating individual unmarked graves.
Moreover on July 15, 2021, the first time she had been heard from publicly or was even publicly identified as the person who had done the GPR work, Dr. Sarah Beaulieu made a further correction: there were actually not 215 human “remains” but only 200 “targets of interest.” The reason for Dr. Beaulieu’s correction of the false claim that human “remains” had been found is self-evident. No human “remains” have been found at KIRS to this day, and in fact independent research indicates that the soil disturbances detected by Dr. Beaulieu’s GPR machine are actually the 2,000 feet of trenches in a long-forgotten septic field installed in 1924.
The basis on which Dr. Beaulieu corrected the number from 215 to 200, however, is not self-evident. The reduction was vaguely attributed to earlier archaeological excavations by Simon Fraser University. How these earlier SFU excavations could have been mistaken by Beaulieu for children’s graves remains unexplained. The answer could almost certainly be found in Beaulieu’s detailed written report. However the Kamloops Band refuses to release the report, despite Chief Casimir’s promise at the virtual press conference on June 4, 2021 mentioned above that the written report would be promptly released to the media. Did the twelve lawyers who filed the complaint on June 3, 2021 have an opportunity to review Beaulieu’s GPR report? We don’t know.
In any event, as Beaulieu herself admitted, only excavation can verify whether the GPR machine detected graves or merely old septic field trenches.
Given the sophistication of the filing, it is difficult to accept that the lawyers who drafted the complaint weren’t aware of the unknowns at the time of composition. They could not have been certain that there were any graves at KIRS, “mass” or otherwise, nor could they have known whether any criminal activity had been involved. It may be that they had convinced themselves that there are dead children populating former residential school grounds across Canada, and in their enthusiasm they believed the ICC would likewise presume that bodies were there on the basis of the flimsy evidence submitted.
The result of the complaint
One thing is evident from Dr. Eboe-Osuji’s reported remarks to the National Gathering in September 2022: that the International Criminal Court does not have jurisdiction in complaints filed with respect to the “historical Indian residential school system in Canada.” The complaint filed by the twelve lawyers alleged crimes against humanity, but the jurisdictional basis for the ICC rejection indicates the same result would follow if a complaint were filed alleging genocide.
The remaining task thus remains to counter Canada’s conviction in the court of public opinion. The Kamloops Band’s steadfast refusal to excavate, despite a promise by Chief Manny Jules to do so, and the fact that the RCMP have been effectively prohibited from conducting an investigation until the Kamloops Band takes the lead, will make that task difficult. Thus the truth may never be known, and reconciliation based on the truth will be impossible.
Special to The Dorchester Review.