The Kamloops residential school building is seen as Canada's Prime Minister Justin Trudeau attends a memorial marking the first anniversary of the announcement of the discovery of unmarked Indigenous child graves at the Tk'emlups Pow Wow Arbour in Kamloops, B.C., on May 23.JENNIFER GAUTHIER/Reuters
A United Nations special rapporteur is planning a Canadian trip to examine the “overall human-rights situation” of Indigenous people in light of the discoveries of possible unmarked graves near former residential schools.
Francisco Cali Tzay, the UN special rapporteur on the rights of Indigenous peoples, told The Globe and Mail he would not be investigating crimes related to the graves during his trip, a setback for the Assembly of First Nations and other groups who had called on him to conduct an independent probe.
“Special rapporteurs do not have a mandate to launch a full-fledged investigation akin to a prosecutor, nor do they have the authority to conduct criminal prosecutions,” he said.
The response complicates efforts to have an international body investigate Canada’s residential-school past for criminal wrongdoing. Last month, AFN National Chief RoseAnne Archibald took that campaign to the floor of the UN, requesting intervention by the agency’s special rapporteurs during a session of the Permanent Forum on Indigenous Issues.
She asked them to consider redress, criminal prosecutions and other “remedies for human-rights violations, including genocide.”
In light of the special rapporteur’s response, Ms. Archibald said she will be requesting a meeting with Mr. Cali Tzay to explore other international options through the UN and said the International Criminal Court (ICC) “remains an option.”
“Clearly, thousands and thousands of our children died in institutions of assimilation and genocide run by governments and churches,” she in an e-mailed statement. “The AFN will continue to press for accountability and reparations to families and communities which were not covered under the [Indian Residential School] Settlement, which compensated individual harms.”
The ICC has already turned down one request to scrutinize residential schools. Last year, a coalition of 22 Canadian lawyers sent a formal complaint to the ICC arguing that the discovery of possible unmarked graves at the former Kamloops Indian Residential School constituted evidence of crimes against humanity. They asked for the prosecutor of the ICC to conduct a preliminary examination.
But the ICC said the allegations fell outside its jurisdiction. According to its founding statutes, the ICC cannot investigate alleged crimes committed before it was founded on July 1, 2002, five years after the last residential school closed.
The lawyers contested that the federal government and the Vatican suppressed their alleged crimes beyond 2002, amounting to a continuing offence. The ICC didn’t address the argument in their rejection.
The lawyers say they may file another complaint as more information emerges from affected Indigenous groups. But the coalition says there may be a reluctance to investigate Canada, one of the ICC’s founding countries.
“I do think if bodies were found in another part of the world, the response would be different,” said Brendan Miller, lead lawyer on the ICC submission. “It’s frustrating.”
The ICC did not respond to requests for comment from The Globe.
The ICC recently published a policy that commits to prosecuting crimes against cultural heritage. Bath-Shéba van den Berg, an expert in international criminal law, said Indigenous communities could leverage the new policy in seeking justice with the body.
Ms. van den Berg added that Indigenous groups could also pursue justice through an international tribunal if they were able to rally support from other countries.
“Sometimes it takes a long time, but it’s worth fighting for,” said Ms. van den Berg, who worked on cases before the UN International Criminal Tribunal for the former Yugoslavia.
There are various non-governmental organizations that could assist with documentation and identification of gravesites, according to Melanie Klinkner, international law professor at England’s Bournemouth University and author of the Bournemouth Protocol on Mass Grave Protection and Investigation.
She said possible partner NGOs could be Physicians for Human Rights and the Argentine Forensic Anthropology Team, formed in the 1980s to locate thousands of Argentines who disappeared during the country’s military rule. The team has since worked in East Timor, Croatia and South Africa.
But neither group could provide a judicial remedy.
After the Kamloops announcement of possible unmarked graves last year, the UN special rapporteur on the rights of Indigenous peoples urged the federal government to conduct its own forensic examinations of any remains that were found and identify those responsible.
But Ms. Archibald and other Indigenous leaders have argued that the government should have no role in investigating institutions it was responsible for establishing.
“That’s why we have to go this international route and why we’re asking for it,” she said at the UN last month. “And thank goodness there is a place we can go outside of Canada to look for justice and accountability for our children, our little ones.”
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