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Genocide on Trial

Push for justice in Guatemala raises questions about Canada's residential schools.

By Dawn Paley and Sandra Cuffe 30 Dec 2013 | Canadian Dimension

Dawn Paley is a journalist from Vancouver, follow her on Twitter @dawn_.

Sandra Cuffe is a freelance journalist. You can find her on twitter at @Sandra_Cuffe.

This article appeared in the November/December 2013 issue of Canadian Dimension magazine and is reprinted with permission.

[Editor's note: This article appeared in the November/December 2013 issue of Canadian Dimension magazine and is reprinted with permission.]

People began lining up even before the sun rose over the mountain ridge, quietly waiting their turn at a makeshift desk outside a home of wood and earth. One by one, relatives of the dead come forward.

Brother. Uncle. Father. Nephew. Grandfather. Cousin. Son. Do you know where their bodies are? Estrella Polar. North Star. All the men were rounded up in the church, executed and dumped in a mass grave in the plantation.

10 years ago, representatives from the National Coordination of Widows of Guatemala (CONAVIGUA) visited the Communities of Population in Resistance (CPR) of the Sierra, gathering information from family members of indigenous civilians killed by military and paramilitary forces in the 1980s. It's seven hours of bus and pick-up rides from Guatemala City to the end of the road in the municipality of San Gaspar Chajul, department of El Quiché, and an even longer hike to CPR communities further up into the Cuchumatanes, leaving the shrill hum of insects behind.

Three years after CONAVIGUA collected testimonies in the community, the remains of 86 people were exhumed from a mass grave in the Estrella Polar plantation. The massacre took place on March 24, 1982, one day after the coup d'état that began Efraín Ríos Montt's brutal regime in Guatemala.

200,000 people were murdered in Guatemala during a 36-year war that ended in 1996. For the first time in the Americas, this spring the domestic court system and national legislation were used to try former state officials for war crimes. But Guatemala is far from the only place in the Americas where indigenous people have endured and survived genocide. In Canada, too, indigenous people continue to battle state policies that strip them of their land, decimate their traditional leadership and attempt to destroy their languages and identities. This article offers a preliminary look at a question the Canadian media has carefully ignored: could Guatemala's trial open new possibilities for indigenous peoples to seek justice in Canada?

Guatemala's history of impunity exposed in court

First, a look at recent history in Guatemala. The CIA-backed coup d'état that saw Jacobo Arbenz removed from power in 1954 uncorked a series of conflicts that eventually led the Guatemalan state to plan a genocide against indigenous people, execute it and then absolve themselves of responsibility. The mere mention of Guatemala has become synonymous with impunity. "In 2009, the Inter-American Commission for Human Rights noted that Guatemala's impunity index for current and past crimes was 98%," according to a project that monitored the trial. "It identified the impunity for the crimes against humanity connected to the internal armed conflict as near-total."

The genocide trial represented a new level of co-operation among the country's courts in order to bring war criminals to justice. It was brought about through a confluence of factors.

Directly impacted Mayan communities have been the protagonists, organizing for justice and reparations, as well as against racism and ongoing encroachment into their lands. For over a decade, Mayan activists and their allies had been working to bring a case against eight of the intellectual authors of crimes against humanity in Guatemala. It wasn't possible to prosecute for atrocities committed during the war until 2010, when new tribunals were created. Finally, Ríos Montt, who ruled the country for nearly a year and a half in 1982 and 1983, lost his immunity from prosecution in January 2013.

It was a perfect storm. Ríos Montt was formally accused of genocide on Jan. 26 of this year. The trial inched into the media spotlight as winter turned to spring. On March 17, Ríos Montt and Mauricio Rodriguez Sanchez were indicted for the massacre of 1,771 Maya Ixil people and the forced displacement of 29,000 people, as well as for sexual violence and torture committed against members of Maya Ixil communities. Ixil survivors and family members attended court in Guatemala City, speaking out about the massacres, the rapes and the terror they experienced during those years.

The trial itself was riveting and complex, the courtroom constantly packed. April was marked by a series of annulments, constitutional challenges, rulings and a recess. First, Ríos Montt was found guilty and sentenced to 50 years in prison for genocide and 30 years for crimes against humanity. Then suddenly he was off the hook. After a rollercoaster ride, things calmed back down to a grinding status quo: the trial was partially annulled, scheduled to start again in May 2014. Ríos Montt was put under house arrest.

Now, "the trial will have to restart from zero, and the forces that oppose the trial are too powerful," according to Luis Solano, a Guatemalan analyst. The business elite, military and traditional oligarchy all oppose the trial. Then there are the wider networks of participation in genocide, revealed in the course of the trial. "If everything took place according to the law and without intervention from the most powerful groups, it would be necessary to bring Otto Pérez Molina to trial, but I sincerely doubt that that will take place," Solano told Canadian Dimension.

The actions of the courts in the Ríos Montt case are reminiscent of the Guatemalan state's conduct during the internal conflict. "Just like what happened during the most cruel stage of the internal armed conflict, regardless of existing legal structures, the state violated its repressive legitimacy in order to carry out its counterinsurgency project," Iduvina Hernández Batres, a writer and analyst with the Association for the Study and Promotion of Security in Democracy in Guatemala City, wrote in an email to Canadian Dimension.

6,000 kilometres from the Guatemala City courtroom, a red cedar bentwood box sits at the front of a hall. Its carved panels represent the indigenous cultures of the children forced to attend residential schools, bearing silent witness to the collective grief, anger, strength and resilience among those listening. In this and other rooms throughout a sprawling convention centre, survivors were giving statements at a Truth and Reconciliation Commission of Canada (TRC) regional event in Victoria.

Teaching away indigenous identity, language and culture

From the 1880s to the 1990s, more than 150,000 indigenous children were separated from their families, cultures and communities and sent to federal and church-run residential schools across Canada, in an attempt to "kill the Indian in the child." Indigenous languages and interaction between sisters and brothers were forbidden. Many children were subject to years of severe physical, emotional and sexual abuse, and many never had the chance to tell their stories. According to the TRC's research into residential school health reports from the first half of the 20th century, some prairie schools had a death rate of 50 per cent.

Now nearing the end of its five-year mandate, the TRC resulted from the 2007 Indian Residential Schools Settlement Agreement, the largest class action lawsuit settlement in the history of Canada. The TRC was created to investigate and document the history and intergenerational legacy of residential schools. Some survivors at TRC events across the country insist that residential schools must be clearly framed as genocide, and TRC head commissioner Justice Murray Sinclair has echoed that claim on several occasions. "The reality is that to take children away and to place them with another group in society for the purpose of racial indoctrination was -- and is -- an act of genocide and it occurs all around the world," Justice Sinclair told students at the University of Manitoba in February 2012.

Whether and to what extent the TRC will explicitly address the question of genocide in its final report and recommendations has not yet been determined, TRC commissioner Chief Wilton Littlechild told Canadian Dimension in an interview. The commission's statement and document-gathering work is still underway. But on a personal note, Littlechild, who is also a lawyer and member of the Ermineskin Cree Nation, hopes the issue will be directly addressed by the commission as its mandate comes to an end.

"Individually, I would hope that we would comment on it," said Littlechild. "I say that more not as a commissioner as such, perhaps, but as a survivor. I spent 14 years in those residential schools, two of them, so I have a particular opinion and feeling about whether or not this, my experience, constitutes cultural genocide."

An earlier draft of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide originally included elements of cultural genocide, but Canada and other colonial states worked hard to have that broader framework omitted. The resulting international legal definition of genocide always involves an intent to destroy a group in whole or in part, but the accompanying physical aspect does not necessarily require killings; "forcibly transferring children of the group to another group" is enough. In fact, in its ruling against Ríos Montt, the Guatemalan court included the forcible removal of Ixil children to other regions and the severing of their connection to the Ixil language and culture in its determination of the acts of genocide.

Memory, structural racism and violence

The war is officially over in Guatemala; peace accords were signed in 1996. But the violence and trauma goes on. During the trial, a state of siege was declared just south of Guatemala City, in San Rafael Las Flores, where Canadian company Tahoe Resources has plans to build a gold mine. Conflicts involving the extractive industries are far from unusual in Guatemala, and cannot be understood outside of the context of impunity and militarization stemming from the genocide.

"Peace without deep social reforms cannot be sustained by a contractual piece of paper, by discourses that are far removed from the daily struggles to survive against rampant privatization, or the further dismantling of already minimal state welfare social programs," wrote Egla Martínez-Salazar, a Guatemalan scholar and professor at the University of Ottawa in her 2012 book Global Coloniality of Power in Guatemala. Indeed, "The waning of one kind of violence has sometimes been associated with new kinds of violence or galvanized social residues and collective memories of past traumas and brutalities," wrote a group of U.S. researchers in 2008. Guatemala City's murder rate was recently ranked the 12th highest in the world; in 2012 there were over 2,000 assassinations in the city of three million. These statistics reveal part of the lived experience of millions, and set the backdrop for foreign direct investment in Guatemala today.

582px version of HealthTribGuatemala_600px.jpg
Maria Magdalena Cuc Choc addresses the People's International Health Tribunal, San Miguel Ixtahuacán, Guatemala, July 15, 2012. Photo by James Rodríguez.

Many survivors had previously given testimony to Guatemala's Historical Clarification Commission, created as part of the peace process in the 1990s. In Canada, many survivors have been critical of the fact that alleged perpetrators cannot be named and that no references or recommendations can be made by the TRC with regards to possible criminal or civil liability, unless the findings have been established through legal proceedings. "We were criticized severely for that because some people felt that they were muzzled by the commission because we couldn't allow them to name names," said TRC commissioner Littlechild.

Kate Doyle, senior analyst of U.S. policy in Latin America at the National Security Archive, says the same critiques were present at the outset of Guatemala's Historical Clarification Commission, which also had a mandate prohibiting the body from individualizing responsibility.

"But what happened actually was the truth commission found a way to tell the story of injustice in Guatemala, of racism, historical racism in Guatemala, of economic inequality in Guatemala, and to explain to Guatemalan society and to the world precisely how those historical structural factors in Guatemalan life for hundreds of years led kind of inexorably to this period of terrible violence," Doyle told Canadian Dimension.

Both the 12-volume report of the Historical Clarification Commission and the Catholic Church's Recovery of Historical Memory project (REMHI) have been essential to the process of justice, she said. "Those reports have served as this kind of really powerful narrative and kind of rough foundation on which prosecutors have been able to build the specifics of individual cases of human rights abuses and, you know, attach those cases to individual perpetrators."

Will a genocide case ever be heard in Canada?

Graham Hudson and David MacDonald have been researching and publishing on the question of whether Canada's residential school history qualifies as genocide. But either way, they don't think a criminal case will be possible.

"I think that the criminal side is something that we won't see in the way that you're seeing it in Guatemala," Graham Hudson, an assistant professor of criminology and criminal justice at Ryerson University, told Canadian Dimension. "The criminal proceeding for something as serious as genocide quite simply will never happen for political reasons, I think, because proceedings can only be initiated at the will of the attorney general of Canada." Over the years, and particularly in the past two decades, some individual staff members from residential schools around B.C. and throughout Canada have been prosecuted -- and in some cases jailed -- on lesser charges, especially related to the sexual assault of schoolchildren by teachers and staff. But investigations have often concluded in a lack of evidence due to the long period of time that has passed. Often, the alleged perpetrators are no longer alive.

The potential for a genocide case in Canadian courts is also limited by the way genocide has been written into Canadian law. To implement its obligations related to the ratification of the Rome Statute of the International Criminal Court, Canada enacted the Crimes Against Humanity and War Crimes Act in 2000. While the act places no time restraints on crimes committed in foreign jurisdictions, when it comes to Canada, applicability is not retroactive. "The statute clearly states that it does not apply to actions [in Canada] that preceded the year 2000, right, so no matter what anyone says, unless that statute is amended or there's a Charter claim which states that that's unconstitutional to prohibit the access to justice on that ground -- unless those sorts of things happen -- there will be no movement, in my opinion, in terms of prosecutions [for genocide]," said Hudson.

A legal case for genocide in Canada at the international level is just as unlikely, says David MacDonald, a professor of political science at the University of Guelph. "It's very hard to indict a country for genocide unless you are yourself a country. Bosnia can take Serbia to the International Court of Justice for genocide, but Chief Littlechild couldn't take the Canadian government to court for genocide or something like that," said MacDonald. "The reality of international law and international politics is that states set the rules and they are the main players, and most international law is set up for the benefit of states."  [Tyee]

Read more: Rights + Justice

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