Indigenous Genocide in the US: Will There Be Punishments for Violating International Law?
November 2021 | Annie Vong, Staff Writer/Editor
Thanksgiving festivities may be over for now, but the US government’s gruesome history towards Indigenous people remains. From disrespecting numerous treaties signed with Indigenous communities to forced assimilation via residential schools, US-Indigenous relations have been tumultuous to say the least. Due to these actions, the US government could possibly face consequences for violating international law. In order to see if that is the case, a few questions must be answered first. Do the US government’s actions towards Indigenous communities fit the UN Convention’s definition of genocide for any crimes committed after 1948? And what happens if the US government is found guilty of committing genocide against Indigenous peoples?
Genocide is widely known as any intentional action to destroy a religious or ethnic group. After the Holocaust in World War II and the Nuremberg trials, the international world clammored to create a legal definition of genocide that could be used in International Criminal Court (ICC) proceedings to punish those who are found guilty of engaging in ethnic cleansing. As such, the UN’s Convention on the Prevention and Punishment of the Crime of Genocide was published in 1948, providing a legal definition of genocide and the procedures a member state must take after accusing another state of genocide.[1]
Before a declaration of genocide can be made, a member state of the UN must bring proof that the genocide was committed that fits within the definition stated in Article 2 of the Convention, which will be explained in detail later. Under the Convention, member states have an obligation to prevent and punish “responsible rulers, public officials or private individuals.”[2] Those that are accused of committing genocide are to be tried in a tribunal in their own territory or in an international tribunal.[3] From there, if the party is found guilty, then the tribunal will impose any punishments deemed necessary.[4]
UN’s Convention on the Prevention and Punishment of the Crime of Genocide details two elements in its definition of genocide, with Article 2, Section 1 being: “a mental element: the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’”[5] The phrase “intent to destroy” ensures that an unsuccessful attempt of genocide is still punishable. Next, Article 2, Section 2 describes, “a physical element.” The five acts that fall under the “physical element” include: “killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.”[6] For the physical element, only one of the five acts must be committed, combined with the mental element in that there was an “intent to destroy,” to fit the definition of genocide.
Article 2 Section 2B and 2E: “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group.”
While all five acts have been committed by the US, the US government can only be held liable for acts committed after the adoption of the Convention. As such, only three of the five acts described in Article 2, Section 2 of the Convention have been committed by the US government after the adoption of the Convention. With the Indian Civilization Fund Act of 1819, the United States and several religious institutions funded and utilized residential schools with the intention for indigenous children to assimilate to American culture.[7] These schools separated Indigenous children from their families and inflicted physical, mental, sexual, cultural, and spiritual abuse for practicing traditions and speaking their native language.[8] Even more horrifying, in 1987, a Board of Indian Affairs-run school was found to have failed in investigating internal sexual abuse allegations.[9] The principal of the school itself, John Boone, was convicted of committing child abuse while in charge of the residential school and was given a life sentence. This would fit the Article 2, Section 2B definition of “causing serious bodily or mental harm to members of the group.” Moreover, an estimated 40,000 children died in or because of residential schools in the US.[10] Many Indigenous children have never returned home and remain unaccounted for to this day. The permanent displacement of Indigenous children from their families and tribes would fit the Article 2, Section 2E definition of “forcibly transferring children of the group to another group.”
Article 2 Sect. 2D: “imposing measures intended to prevent births within the group.”
In 1970, the average birth rate of Indigenous women was 3.79, while the median for all racial and ethnic groups was 1.79.[11] The creation of the Indian Health Service, specifically their family planning division, occurred to reduce the birth rate of Indigenous women, weakening their political power.[12] It was common in the 1960s for the Indian Health Service to sterilize Indigenous women without their knowledge or consent. The Indian Health Service used coercion to obtain signatures on consent forms, had women sign consent forms after they had given birth while still under the influence of a sedative, and did not provide the required waiting period of seventy-two hours in between signing the consent form.[13] As a result of these practices, the Indigenous birth rate dropped from 3.79 to 1.8. This would fit the Article 2, Section 2D definition of “imposing measures intended to prevent births within the group.”
Article 2 Section 1: “a mental element: the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’”
Even though there is evidence that the United States engaged in the physical elements of genocide, the actions must have been done with the “intent to destroy” to be considered genocide. In determining whether the actions of the US government fit the mental element defined in Article 2, Section 1, we can look to past tribunals for genocide. The International Criminal Tribunal for the former Yugoslavia stated that the repetition of destructive and discriminating acts constitutes intent.[14] Applying that logic in this case, the prolonged use of residential schools and sterilization procedures without informed consent in the US would fit the definition of the mental element.
What would the consequences look like?
Historically, there have been minimal consequences for those found guilty of committing genocide. The lack of consequences is especially prominent in regards to holding more powerful and wealthier countries accountable, particularly the countries that have a seat on the United Nations Security Council (UNSC). Any sanctions brought by the legislative body of the UN that are leveled against the countries in the UNSC can be struck down by a single veto vote.[15] This proved problematic during the 1980s, when the International Court of Justice found the United States guilty of breaching international law after involving themselves in Nicaragua’s civil war by funding and arming Contra fighters. The US was ordered to pay 17 billion dollars in reparations, but the country utilized its veto power to evade consequences.[16] Additionally, during the Cold War, the US used its veto power to strike down a UN resolution that would have deplored the US’s invasion of Grenada.[17] Breaking and evading the consequences of international law seems to be standard practice for the United States, and it will likely happen in the event that the US government is found guilty of genocide against its Indigenous peoples.
The Convention does not specify any statute of limitations for the crime of genocide, so it is still possible for the US government to be held accountable for crimes committed after 1948. Previous ICCs that investigated genocides in former Yugoslavia and Rwanda have found a handful of people from their respective governments guilty and given them individualized prison sentences, rather than finding the entirety of a government guilty and sanctioning the country at large. However, most people that could be tried and found guilty of genocide in the US may not be alive today. Nonetheless, there is an ICC trust fund for victims that operates independently of ICC investigations and can give out reparations to victims of those that violated international law.[18] When enforcing international law, the US should not avoid facing consequences or paying reparations. This would ensure that the UN is a governmental body that does not only serve the interests of wealthier countries and punish the countries that do not have a seat on the UNSC, but rather a body that seeks fair treatment for all member states. Paying reparations is a small bill for the US government itself, but it can be incredibly substantial in repairing the damage done to the generations of Indigenous communities.
Sources
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948 78 U.N.T.S. 277, S. Exec. Doc. O, 81-1 (1949).
Ibid., 1.
Ibid.
Ibid.
Ibid.
Ibid.
U.S., Congress, House, An Act making provision for the civilization of the Indian tribes adjoining the frontier settlements (Civilization Fund Act), Pub.L. 15–85.
“US Indian Boarding School History.” The National Native American Boarding School Healing Coalition. National Native American Boarding School Healing Coalition. Accessed November 22, 2021.
Ibid.
Brooks, Brad. “Native Americans Decry Unmarked Graves, Untold History of Boarding Schools.” Reuters. Thomson Reuters, June 22, 2021.
Lawrence, J. (2000). The Indian Health Service and the Sterilization of Native American Women. American Indian Quarterly, 24(3), 400–419.
Ibid., 4.
Ibid.
Devrim Aydin, "The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts," Journal of Criminal Law 78, no. 5 (October 2014): 423-442.
United Nations Charter, opened for signature June 26, 1945.
Castillo, Mariano. “Nicaragua May Revive $17 Billion Claim against U.S.” CNN. Cable News Network, July 22, 2011.
Bernstein, Richard. “U.S. VETOES U.N. RESOLUTION 'DEPLORING' GRENADA INVASION.” The New York Times, October 29, 1983
Evans, Christine. “The Right to Reparations in International Law for Victims of Armed Conflict.” Cambridge Studies in International and Comparative Law, 2012.