Forbidding the “G-Word”: Holocaust Denial as Judicial Doctrine in Canada by Ward Churchill

“Where scholars deny genocide, [they] contribute to the deadly psychohistorical dynamic in which unopposed genocide begets new genocides.”

—Roger W. Smith, Eric Markusen and Robert Jay Lifton, “Professional Ethics and Denial of the Armenian Genocide” (1995)

Denial of genocide has become a matter of increasing concern in recent years, primarily as a result of efforts by a relative handful of neo-Nazi “scholars” to rehabilitate their ideological heritage by advancing arguments and “evidence” that the Hitlerian Holocaust of the early 1940s never occurred. (1) So insidious has Holocaust denial been considered by many governments that they have criminalized it, and prosecutions of deniers have occurred in France, Canada and elsewhere. (2) The United States bars known deniers from entering the country, and has supported civil litigation against individuals and institutions engaging in such activities. (3)

A related but far less noticed phenomenon has been the efforts of a significant number of ostensibly more reputable scholars to indulge in a sort of reverse denial. According to this group, the Holocaust undoubtedly occurred, but it was something experienced exclusively by Jews. (4) Here, the fates of the Gypsies, Slavs, homosexuals and others at the hands of the Nazis are routinely minimized and consigned to the ambiguous category of “non-genocidal suffering.” (5)

In their more extreme formulations, proponents of Jewish exclusivism hold not only that the Holocaust was a uniquely Jewish experience, but that it is history’s sole instance of “true” genocide. Exclusivists have gone on record, explicitly and repeatedly, denying that everything from the extermination of the Pequots in 1637, to the Turkish slaughter of more than a million Armenians between 1915 and 1918, to the more recent genocides in Cambodia, East Timor, Bosnia, Rwanda and Kosovo aren’t really examples of genocide at all. (6) Hence, while neo-Nazis deny a single genocide, exclusivists deny many.

There are of course other distinctions to be drawn between Holocaust deniers and those championing the exclusivity of suffering embodied in the Nazi Judeocide. Although their influence often exceeds their actual numbers, (7) the propagandists of neo-Nazism are by any definition a tiny fringe group. Those promoting ideas of Jewish exclusivism, on the other hand, comprise substantial majorities at the very hearts of the academic and media mainstreams. Moreover, their outlook has been adopted as official or quasi-official policy by numerous governments, including most prominently those taking the strongest stands against neo-Nazi deniers. (8) In sum, the Holocaust uniqueness postulations of Jewish exclusivism have assumed the status of an orthodoxy in historical/sociological interpretation, while those of neo-Nazism have not (and hopefully never will).

The reasons for this are not especially mysterious. The magnitude of their people’s catastrophe has generated among Jews an understandable need to find spiritual meaning in the experience, a matter which had led many to an unfortunate perversion of their own tradition in which they, a “chosen people,” were uniquely selected by God to endure the Holocaust. (9) More pragmatically—or cynically—others have realized that such suffering can be translated into a kind of “moral capital” and used to political advantage, particularly in garnering support for the Israeli state. (10) There is thus a clear, and often quite overtly expressed, desire among many Jews to claim an absolute monopoly in terms of genocidal suffering. (11)

For the elites of gentile societies, meanwhile, affirming the pretensions of Jewish Holocaust exclusivism carries with it an automatic absolution: If only the Nazi Judeocide can be qualified as genocide, it follows that only Nazis have ever been perpetrators or beneficiaries of the crime. The point is not insignificant. Genocide has been all but universally decried as a not merely “incomparable,” but an “unthinkable” offense, (12) one defying any possible redemption of those committing it (which is of course why neo-Nazis seek to “prove” their ideological forebears did not engage in it). As the Germans have long since discovered, the citizenry of no nation can take pride in a history besmirched by genocidal comportment. (13) Nor can any citizenry be counted upon to conveniently acquiesce in contemporary policies of genocide carried out in their name.

Far more than mere conceptions of “national honor” are at stake. Among those wishing to see themselves as “good people”—which is virtually everyone—the very term “genocide” provokes such deep and generalized revulsion that any official admission of its descriptive applicability to the national character, even historically, might threaten the hegemony upon which systemic stability largely depends.14 Genocide must therefore be denied at all costs, most often by explaining it away as being or having been something else altogether. For this purpose, constraining perceptions of genocide to the terms set forth by Jewish exclusivism serves non-Jewish interests as readily as Jewish.

Definitional Distortions

Genocide is not an old word, having “naturally” evolved over time to hold meanings contrary to its own. Nor was it meant to serve as a synonym for mass killing. When Raphaël Lemkin coined the term in 1944, he went to considerable lengths in explaining that it was intended to describe policies and processes designed to bring about the dissolution and disappearance of targeted human groups, as such. He wrote “Genocide has two phases, one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor.” (15) If these two conditions have been fulfilled, a genocide has occurred, even if every member of the targeted group has survived the process in a physical sense.

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings. It is intended rather to signify a coordinated plan of different actions aimed at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be a disintegration of political and social institutions—of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed at the national group as an entity, and the actions involved are directed at individuals, not in their individual capacity, but as members of the national group (emphasis added). (16)

In 1946, Lemkin was retained by the United Nations Secretariat to draft an international convention codifying the crime. Therein, genocide—that is, “policies aimed at eradicating targeted ethnical, racial, national, religious or political groups”—was defined in a twofold way: “(1) the destruction of a group,” and “(2) preventing its preservation and development.” (17) The offending policies were themselves grouped in three categories, all of equal gravity:

· Physical Genocide, meaning outright extermination as well as the imposition of “slow death measures (i.e., subjection to conditions of life which, owing to lack of proper housing, clothing, food, hygiene and medical care or excessive work or physical exertion are likely to result in the debilitation and death of individuals; mutilations and biological experiments imposed for other than curative purposes; and deprivation of livelihood by means of looting or confiscation of property).

· Biological Genocide, meaning the prevention of births among the target group (i.e., involuntary sterilization or abortion, as well as compulsory segregation of the sexes).

· Cultural Genocide, meaning destruction of the specific characteristics of the group (i.e., forced dispersal of the population; forced transfer of children to another group; suppression of religious practices or the national language; forced exile of writers, artists, religious and political leaders or other individuals representing the culture of the group; destruction of cultural/religious shrines or monuments, or their diversion to alien uses; destruction or dispersion of documents and objects of historical, artistic or religious value, and objects used in religious worship). (18)

The draft was then turned over to a committee composed of nation-state delegates to be “revised and condensed” before its submission to the U.N. General Assembly. During this process, the United States and Canada, acting in concert, were able to arrange deletion of almost the entire provision on cultural genocide, as well as all explicit references to slow death measures.19 As the matter was finally framed in international law on December 9, 1948, “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:”

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on members of the group conditions of life calculated to bring about physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. (20)

Strikingly, even in this greatly-truncated delineation, only one in five criteria pertain to direct killing. Eighty percent of the legal definition of genocide thus devolves upon nonlethal policies and activities. The responses of the U.S. and Canada to this are instructive. The United States simply refused for forty years to accept the result. Finally, in 1988, embarrassed at being the only country so openly rejecting the rule of law, it attempted a ratification in which it claimed a “right” to exempt itself from compliance whenever convenient. (22)

Canada also submitted an invalid ratification, but much earlier, in 1952. The subterfuge in this case was to write domestic implementing legislation in such a way as to excise from the country’s “legal understanding” those classifications of genocidal policy in which Canada was actually engaged, retaining only those involving “physical destruction… killing, or its substantial equivalents” (that is, Article II(a), (c) and (d) of the 1948 Convention).

For purposes of Canadian law, we believe that the definition of genocide should be drawn somewhat more narrowly than in the [already much narrowed] international Convention so as to include only killing and its substantial equivalents…The other components of the international definition, viz, causing serious bodily or mental harm to members of a group and forcibly transferring children of one group to another group with intent to destroy the group we deem inadvisable for Canada. (23)

In 1985, the parliament went further, removing the prohibition on involuntary sterilization (1948 Convention, Article II(d)) from Canada’s genocide statute. (24) No country, of course, whether it be Canada or the U.S. or Nazi Germany, holds a legitimate prerogative to pick and choose among elements of international law, electing to abide by some and not others. It possess even less of a right to unilaterally “revise” the Laws of Nations in conformity with its own preferences. As the Nazis were informed at Nuremberg, the requirements of customary law are binding, irrespective of whether individual sovereignties wish to accept them. (25)

Nonetheless, taking the cue from their governments, a range of “responsible” scholars shortly set themselves to the task of deforming Lemkin’s concept even further. In 1959, Dutch law professor Pieter Drost published a massive two-volume study wherein he argued that usage of the term “genocide” should be restricted to its physical and biological dimensions, and that cultural genocide should be redesignated as “ethnocide,” a term he erroneously attributed to “post-war French scholars.” (26) Thereafter, biological genocide was also quietly dropped from discussion as writer after writer defined genocide exclusively in terms of killing. (27) Forty years of this continuous “genocide equals mass murder” distortion has yielded an altogether predictable effect, not only on the popular consciousness but on that of many otherwise critical activists and intellectuals. This last is readily evident in the recent release of a book by Native Hawaiian sovereigntist and professor Haunani-Kay Trask, wherein genocide is defined as simply the “systematic killing of a people identified by ethnic/racial characteristics.” (28)

Friends of the Lubicon

Questions arise as to whether, after all this, Lemkinesque understandings of genocide still prevail at all, and if so, whether they retain the capacity to galvanize public sentiment. The answers rest, to some extent, in a handful of examples. In 1968, as part of the Russell Tribunal’s verdict condemning U.S. aggression in Vietnam, Jean-Paul Sartre concluded not only that was the policy itself genocidal, but that colonialism as a system inherently produces genocidal results.29 Considerable support was lent to the latter of Sartre’s findings in 1980, when the Tribunal published a report on conditions imposed upon the indigenous peoples of the Western Hemisphere.30

Still further expansions on the theme have accrued through publications like Cultural Survival Quarterly, and in the Native resistance movements which emerged during the 1980s in places like Wollaston Lake, James Bay and Big Mountain, Arizona.31 Perhaps the most potent example, however, concerns the experience of a tiny Cree band at Lubicon Lake, in northern Alberta, who have been confronted with sociocultural eradication as the result of maneuverings on the parts of both the federal and provincial governments to allow the Daishowa Corporation, a transnational manufacturer of paper products, to “deforest” their traditional territory (within which government-sanctioned oil and gas exploration had already wrought a noticeable degree of havoc).32

After fruitlessly attempting to negotiate a resolution with both the corporation and participating governmental entities, the band, working through a non-native Toronto-based organization calling itself Friends of the Lubicon (FOL), announced a boycott of Daishowa products in 1991. The FOL made the genocidal impacts of the corporation’s planned clearcutting of Lubicon territory the centerpiece of its effort, developing a well-conceived media campaign to put its message across. As a Canadian court later put it, the “results of the Friends’ campaign against Daishowa…were, in a word, stunning.”33 Not only did typical Canadians prove quite capable of understanding nonlethal modes of genocide, they displayed a pronounced willingness to decline to trade with businesses complicit in such processes. On this basis:

Approximately fifty companies using paper products (mostly paper bags) from Daishowa were approached by the Friends. The list of these companies reads like a Who’s Who of the retail and fast food industries in Ontario—Pizza Pizza, the Liquor Control Board of Ontario, Cultures, Country Style Donuts, Mr. Submarine, Bootlegger, A&W, Kentucky Fried Chicken, Woolworth’s, Roots, Club Monaco, Movenpeck Restaurants and Holt Renfrew, to name but a few. Every one of the companies approached by the Friends joined the boycott of Daishowa products. All but two did so…before their stores were picketed…Pizza Pizza was subjected to picketing outside its store on two occasions; Woolworth’s had a single store picketed on two occasions…Both Pizza Pizza and Woolworth’s joined the boycott.34

By 1994, the boycott was costing Daishowa millions of dollars annually in lost sales.35 Under such circumstances, it stood to lose money rather than profiting by cutting timber on Lubicon land. One result was that, although Daishowa had indicated that it would commence logging operations “as soon as the ground freezes over” in the fall of 1991, not a tree was felled.36 As FOL leader Kevin Thomas observed in 1997, the success of the boycott demonstrated clearly that there are viable alternatives for those genuinely opposed to genocide. Rather than simply bearing “moral witness” to what is happening half-a-world away in Tibet or Kosovo, it is entirely possible “to actually make a difference by focusing attention mainly on what our own government is doing right here at home and undertaking direct action to stop it.”37

“This can have a precedential effect,” Thomas suggests. “Halting genocide in one place helps lay the groundwork for halting it in all places. But, for this to happen, it’s essential that people be made aware of what genocide actually is. We’ve all been pretty systematically misled on that score, but if we’re confused, if we can’t recognize genocide for what it is when it’s happening right in front of us, there’s no way in the world we can change anything for the better. That’s why there’s been so much effort expended on keeping everybody confused about it: business as usual pretty much depends on an ability to perpetrate genocide more-or-less continuously, without its being recognized as such and, as a result, without its encountering significant opposition from average citizens.”38

Judicial Repression in Canada

The lesson was lost on neither the corporate nor the governmental sectors of Canada’s status quo. Consequently, naming Thomas and two other key organizers as principle defendants, Daishowa filed a SLAPP suit against the FOL on January 11, 1995. Citing millions in lost revenues and a steady erosion in its client base as damages, the corporation contended that the three men had conspired to employ illegal tactics such as an illegal secondary boycott, and were guilty of defamation by using the word “genocide” in their public outreach efforts.39

Even before the defendants had an opportunity to file a response to the allegations against them, a temporary injunction was issued to prevent them from engaging in boycott activities of any sort for ninety days. By then, Daishowa’s attorneys had requested an interlocutory injunction to extend the prohibition for the duration of the suit. This motion was “substantially dismissed,” but the FOL was ordered not to describe Daishowa’s planned activities as genocidal until a final ruling had been made.40 The following trial ended with one of the more brilliantly obfuscatory rulings in Canadian history.

At one level, Judge J.C. MacPherson’s lengthy verdict was a study in liberal legal scholarship, rejecting in an almost contemptuous tone each of Daishowa’s claims that the FOL’s boycott techniques had been in themselves unlawful. On the contrary, he concluded, “the manner in which the Friends have performed their picketing and boycott activities is a model of how such activities should be conducted in a democratic society.”41 All of this progressive cant, however, was simply a gloss meant to disguise the unmistakably reactionary core of what the judge had to say: that the FOL’s characterization of Daishowa’s corporate policy as genocidal constituted “an enormous injustice…bordering on the grotesque…cavalier and grossly unfair to Daishowa.”42 Having thus found that the FOL had indeed defamed the corporation, he forbade them—and everyone else in Canada—from ever again employing such accurate terminology to describe what the corporation was doing.43

It was not that MacPherson was unaware of the “plight” in which Daishowa’s activities had placed the Lubicons. Indeed, he remarked upon it at some length.

The essential subject matter of everything the Friends say and do is the plight of the Lubicon Cree…There can be little doubt that their plight, especially in recent years, is a tragic, indeed a desperate one…The loss of a traditional economy of hunting, trapping and gathering, the negative effect of industrial development on a people spiritually anchored in nature, the disintegration of a social structure grounded in families led by successful hunters and trappers, alcoholism, serious community health problems such as tuberculosis, and poor relations with governments and corporations engaged in oil and gas and forest operations on land the Lubicon regard as theirs—all of these have contributed to a current state of affairs for the Lubicon Cree which deserves the adjectives tragic, desperate and intolerable.44

Nor was he unaware that imposition of such conditions by “governments and corporations engaged in oil and gas and forest operations” conforms quite precisely with both the etymological and legal definitions of the crime of genocide, even under Canadian law. In his verdict, the judge quoted Raphaël Lemkin, the 1948 Convention and the relevant Canadian statute all three, only to disregard them, along with testimonies of a whole series of expert witnesses,45 in favor of the “plain and ordinary meaning of the word ‘genocide’” contained in Webster’s Dictionary. This, he insisted—although the dictionary actually didn’t—was “the intentional killing of a group of people.”46

MacPherson never specified the point at which he believed the content of abridged dictionaries had come to outweigh black letter legal definition in Canadian jurisprudence.47 Less did he explain how, using his “common sense” approach, anyone is supposed to distinguish between the Nazi extermination of the Jews and such relatively trivial phenomena as the St. Valentine’s Day Massacre (both involve the “intentional killing of a group of people,” and would thus seem to be equally genocidal under the judge’s “plain, ordinary” and utterly absurd interpretation).48 Nevertheless, he went on to assert that characterizations of genocide deriving from other definitions—those found in international law, for example—do not constitute “fair comment” about perpetrators and their activities.49

It follows that organizations like the FOL, devoted not only to direct action but to what even the judge described as a broader “educational” purpose, are left with an ability to confront genocidal processes only by referring to them as something else (which is to say, in effect, by implicitly denying that they are genocide).50 In the alternative, should such groups—or, presumably, the victims themselves—insist upon calling things by their right names, perpetrators have been perfectly positioned by MacPherson’s judicial prevarications to claim “damages” and/or take other legal action against them.

The Wages of Denial

As prominent exclusivist Deborah Lipstadt has noted, the “general public tends to accord victims of genocide a certain moral authority. If you devictimize a people, you strip them of their moral authority,” and thus a substantial measure of their ability to attract public support.51 Lipstadt was writing from an explicitly Jewish perspective, of course, and of her own people’s natural desire to be compensated in various ways for the horrors of the Nazi Judeocide. Her point, however, is equally valid with respect to any genocidally victimized group. Moreover, where genocide is an ongoing process—as with the Lubicons—the need for public support goes not to securing compensation, but survival itself.

This is by no means an academic consideration. Cumulatively, one result of a half-century of “scholarship” by people like Lipstadt has been the functional devictimization of literally hundreds of indigenous peoples, even as their very existence has been systematically extinguished. Refused moral authority by those better stationed to monopolize it for themselves—and thus unable to command public attention, much less support—a truly staggering number of Native societies have been pushed into oblivion since 1950.52 It is in some ways a perverse testament to the effectiveness of exclusivist propaganda that most such passings—whether physical or “merely” cultural—have gone not only unprotested but unnoticed by the general populace.

In this, the convolutions of legalism have played their role. Arcane preoccupations with the standards of proof required in establishing perpetrator intent, and exactly what scale, mode, tempo or proportionality of killing should be necessary for instances of mass murder to be considered “genuinely” genocidal, have done far more to mask than to reveal the realities of genocide. (53) Small wonder that there has never been a concerted attempt by the international community to enforce the 1948 Convention. Now J.C. MacPherson places his personal capstone on the whole sordid situation, entering a ruling which by implication transforms law from its potential as a weapon against genocide into one with which those engaged in it can shield themselves from any sort of effective exposure and intervention.

Denial of genocide, insofar as it plainly facilitates continuation of the crime, amounts to complicity in it. This is true whether the deniers are neo-Nazis, Jewish exclusivists, renowned international jurists or provincial Canadian judges. Complicity in genocide is, under Article III of the 1948 Convention, tantamount to perpetration of genocide itself. It is formally designated a Crime Against Humanity, those who engage in it criminals of the worst sort. There is no difference in this sense between a J.C. MacPherson, a Deborah Lipstadt and an Adolf Eichmann. (54)

And what of the victims? Unquestionably, any group faced with the prospect of systemically-imposed extinction holds not only the right but the obligation to defend and preserve itself by the best means available to it. Afforded the moral currency attending its circumstance, it may well be able to undertake this task both nonviolently and successfully. This, surely, is a primary lesson of the recent collaboration between the Lubicons and the FOL. Denied such currency, however, the victims can hardly be expected to simply “lie down in a ditch and die.” (30) To paraphrase Martin Luther King, Jr., those who endeavor to make the success of peaceful resistance to genocide impossible only make violent resistance inevitable. They can have no complaint, morally, ethically or otherwise, when the chickens come home to roost.

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Endnotes:

1. Pierre Vidal-Niquet, Assassins of Memory: Essays on the Denial of the Holocaust (New York: Columbia University Press, 1992); Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (New York: Free Press, 1993).

2. In France, there was the 1981 trial of Robert Faurisson, the country’s leading denier, for defaming Holocaust witnesses and scholars. In Canada, the most notable cases have been the 1985 prosecutions of James Keegstra, an Alberta school teacher who’d spent fourteen years indoctrinating his students that the Holocaust was a “hoax,” and Ernst Zundel, a Toronto-based publisher who is one of the world’s leading purveyors of such tripe. See Nadine Fresco, “Denial of the Dead: On the Faurisson Affair,” Dissent, Fall 1981; Alan T. Davies, “A Tale of Two Trials: Antisemitism in Canada,” Holocaust and Genocide Studies, Vol. 4, 1989.

3. The primary case in the U.S. was Mel Mermelstein v. Institute for Historical Review, et al., Superior Court of California, Civ. No. 356542 (Feb. 1981); British “historian” David Irving is among those barred from entering the United States because of his record as a denier.

4. See, e.g., Martin Gilbert, The Holocaust: A History of the Jews of Europe During the Second World War (New York: Henry Holt, 1985); Leni Yahil, The Holocaust: The Fate of the European Jewry, 1932-1945 (New York: Oxford University Press, 1990).

5. This happens by way both directly and by way of omission. In Deborah Lipstadt’s Denying the Holocaust, for example, there is not so much as an index entry for Gypsies, despite the fact that this smaller people was subject to exactly the same Nazi racial decrees as Jews, were exterminated in precisely the same manner and in the same places as Jews, and, proportionately, suffered equivalent or greater population losses; Ian Hancock, “Responses to the Porrajmos: The Romani Holocaust,” in Alan S. Rosenbaum, ed., Is the Holocaust Unique? Perspectives in Comparative Genocide (Boulder, CO: Westview Press, 1996). For direct assertions, see, e.g., Michael Berenbaum, ed., A Mosaic of Victims: Non-Jews Persecuted and Murdered by the Nazis (New York: New York University Press, 1990).

6. Although there are literally hundreds of iterations of the notion available from other authors, the most comprehensive assertion that the Nazi Judeocide is “phenomenologically unique” has been that advanced by Steven T. Katz in his massive The Holocaust in Historical Context, Vol. 1: The Holocaust and Mass Death Before the Modern Age (New York: Oxford University Press, 1994).

7. A poll conducted in Italy during the fall of 1992, for example, revealed that nearly 10 percent of the country’s adult population have been convinced that the Holocaust never happened; Jewish Telegraph News Agency, Nov. 11, 1992.

8. Examples of official policy include the quid pro quo entered into between the governments of Israel and Turkey by which the Israelis ban public characterizations of the Armenian genocide as genocide. In exchange, the Turks pronounce the Nazi Judeocide as the “real” genocide. Working together, the two governments were able to prevent the Armenians from being listed as victims of genocide in the U.S. Holocaust Memorial Museum in Washington, D.C.; Roger W. Smith, Eric Marusen and Robert Jay Lifton, “Professional Ethics and the Denial of the Armenian Genocide,” Holocaust and Genocide Studies, No. 9, 1995. Insofar as it has received not inconsiderable governmental support and endorsement, the Holocaust Memorial Museum itself, though nominally private, may be viewed as an example of quasi-official policy.

9. See, e.g., Arthur A. Cohen, The Tremendium: A Theological Interpretation of the Holocaust (New York: Holmes & Meier, 1981); John Roth and Michael Berenbaum, The Holocaust: Religious and Philosophical Implications (New York: Paragon House, 1989). For critique, see John Murray Cuddahy, “The Holocaust: The Latent Issue in the Uniqueness Debate,” in Philip F. Gallagher, ed., Christians, Jews and Other Worlds: Patterns of Conflict and Accommodation (Landham, MS: University Press of America, 1988); Arno J. Mayer, Why Did the Heavens Not Darken? The Final Solution in History (New York: Pantheon, [2nd ed.] 1990).

10. The term “moral capital” is taken from exclusivist writer Edward Alexander, The Holocaust and the War of Ideas (New Brunswick, NJ: Transaction, 1994) p. 195.

11. E.g., Yehuda Bauer, “Whose Holocaust?” and Edward Alexander, “Stealing the Holocaust,” both in Midstream, Vol. 26, No. 9, 1980.

12. Roger Manvell and Heinrich Fraenkel, The Incomparable Crime; Mass Extermination in the 20th Century: The Legacy of Guilt (London: Hinemann, 1967); Israel W. Charney, How Can We Commit the Unthinkable? Genocide, the Human Cancer (Boulder, CO, Westview Press, 1982).

13. See generally, Richard Evans, In Hitler’s Shadow: West German Historians and the Attempt to Escape from the Nazi Past (New York: Alfred A. Knopf, 1989).

14. As the Italian theorist Antonio Gramsci described it, hegemony functions by way of a master narrative designed to convince the great mass of people that the prevailing order is natural, right and thus inevitable. Any concession by ruling élites that there is anything fundamentally wrong with the order over which they preside would of course undermine the very belief system upon which their own ascendancy depends; Walter L. Adamson, Hegemony and Revolution: A Study of Antonio Gramsci’s Political and Cultural Theory (Berkeley: University of California Press, 1980) esp. pp. 170-9.

15. Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944) p. 79.

16. Ibid.

17. U.N. Doc. A/362, June 14, 1947.

18. Ibid. For further discussion, see Robert Davis and Mark Zannis, The Genocide Machine in Canada: The Pacification of the North (Montréal: Black Rose Books, 1973) pp. 15-21.

19. On Canada’s role, see Canada and the United Nations (Ottawa: Dept. of External Affairs, 1948) p. 191. Overall, see M. Lippman, “The Drafting of the 1948 Convention and Prevention and Punishment of the Crime of Genocide,” Boston University International Law Journal, No. 3, 1984.

20. U.S.T. _______, T.I.A.S. _______, 78 U.N.T.S. 277 (1948), Article II. The Convention’s third article makes it a crime not only to perpetrate genocide, but to conspire or attempt to commit it, to incite it, or to be otherwise complicit in its perpetration; for text, see Ian Brownlie, ed., Basic Documents on Human Rights (Oxford: Clarendon Press, [3rd ed.] 1992) pp. 31-4.

21. Lawrence LeBlanc, The United States and the Genocide Convention (Durham, NC: Duke University Press, 1991) pp. 7-12.

22. There can be no question whether parliament was aware its Native residential school policy violated Article II(e) of the Genocide Convention, the prohibition on forced transfer of children. The issue was raised repeatedly during the debates on ratification; Canadian Civil Liberties Association, “Brief to the Senate Standing Committee on Legal and Constitutional Affairs, “April 26, 1969, p. 6. Yet this is one of the provisions deleted from the Canadian genocide statute, ostensibly because it had “no essential relevance to Canada where mass transfers of children to another group are unknown”; Special Committee on Hate Propaganda in Canada (1948); quoted in Davis and Zannis, Genocide Machine, p. 23. For background, see J.R. Miller, Shingwauk’s Vision: A History of Native Residential Schools (Toronto: University of Toronto Press, 1996).

23. Special Committee on Hate Propaganda in Canada (1948); quoted in Davis and Zannis, Genocide Machine, p. 23.

24. Criminal Code, R.S.C. 1985, c. C-46.

25. As the matter was put by a principle advisor to the chief U.S. prosecutor at Nuremberg, many of the charges brought against the Nazis were based in upon their violation of “customary international law—a system [evolving] under the impact of common consent and the demands of world security. Acquiescence of all members of the Family of Nations is not necessary for this purpose. All that is needed is reasonable proof of the existence of widespread custom”; Sheldon Glueck, “The Nuremberg Trial and Aggressive War,” Harvard Law Review, No. 59, Feb. 1946, pp. 396-456. This rule was affirmed by the International Court of Justice with respect to the Genocide Convention in an Advisory Opinion issued on May 28, 1951: “The principles inherent in the Convention are acknowledged by civilized nations as binding on [any] country, even [those] without a conventional obligation.” In effect, “reservations” to the Convention like that attempted by the U.S., or attempts to limit its scope by deleting portions of it in domestic implementing statutes, as Canada has, have no legal validity at all; see generally, Robert K. Woetzel, “The Eichmann Case in International Law,” Criminal Law Review, Oct. 1962, pp. 671-82.

26. Pieter N. Drost, Genocide (Leyden: A.W. Sythoff, 1959); The Crime of State (Leyden: A.W. Sythoff, 1959). In actuality, Lemkin himself coined the term “ethnocide” in a footnote on page 79 of Axis Rule—the same page on which the neologism “genocide” itself was invented—explaining therein that the two words are synonyms. Interestingly, subsequent researchers have simply repeated without further investigation Drost’s false attribution of “ethnocide” to French scholarship, as well as his unfounded contention that it describes something other than genocide; see, e.g., Kurt Jonasohn and Frank Chalk, “A Typology of Genocide and Some Implications for the Human Rights Agenda,” in Isador Walliman and Michael Dobkowski, eds., Genocide and the Modern Age: Etiology and Case Studies of Mass Death (Westport, CT: Greenwood Press, 1987) pp. 7, 37.

27. Frank Chalk, “Definitions of Genocide and Their Implications for Prediction and Prevention,” in Yehuda Bauer, et al., eds., Remembering for the Future: Working Papers and Addenda, 2 vols. (Oxford: Pergammon Press, 1989) pp. 76-7.

28. Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawai’i (Honolulu: University of Hawai’i Press, [rev. ed.] 1999) p. 251.

29. Jean-Paul Sartre and Arlette El Kaim-Sartre, On Genocide and a Summary of the Evidence and Judgments of the International War Crimes Tribunal (Boston: Beacon Press, 1968). Although he was highly critical of Sartre’s “overgeneralized” formulation, Leo Kuper, one of the more astute analysts of genocide, by-and-large incorporated it into his own books: Leo Kuper, Genocide: Its Political Uses in the Twentieth Century (New Haven, CT, Yale University Press, 1981); International Action Against Genocide (London: Minority Rights Group, [rev. ed.] 1984); The Prevention of Genocide (New Haven, CT: Yale University Press, 1985).

30. Russell Tribunal, Report of the Fourth Russell Tribunal on the Rights of the Indians of the Americas (Nottingham: Bertrand Russell Foundation, 1980).

31. Cultural Survival Quarterly is the journal of Cambridge, Massachusetts-based Cultural Survival, Inc. On the resistance movements, see Miles Goldstick, Wollaston: People Resisting Genocide (Montréal: Black Rose Books, 1987); Boyce Richardson, Strangers Devour the Land: The Cree Hunters of the James Bay area versus Premier Bourassa and the James Bay Development Corporation (Post Mills, VT: Chelsea Green Publishers, [rev. ed.] 1991); Ward Churchill, “Genocide in Arizona: The ‘Navajo-Hopi Land Dispute’ in Perspective,” in my Struggle for the Land: Native North American Resistance to Genocide, Ecocide and Colonization (Winnipeg: Arbiter Ring, [rev. ed.] 1999).

32. The story of the Lubicon is quite complex; see John Goddard, Last Stand of the Lubicon Cree (Vancouver/Toronto: Douglas & McIntire, 1991).

33. Daishowa Inc. v. Friends of the Lubicon, Ontario Court of Justice (Gen. Div.), File No. 95-CQ-59707, Verdict of Judge J. MacPherson (Apr. 14, 1998) p. 21.

34. Ibid., pp. 21-2.

35. Thomas Claridge, “Judge to Rule May 19 on Lubicon boycott: Daishowa says $3-million annual sales lost,” Toronto Globe and Mail, May 1, 1995.

36. FOL briefing paper distributed by the Sierra Legal Defense Fund, beginning in 1996 (copy on file).

37. Conversation with Kevin Thomas, June 14, 1997 (notes on file).

38. Ibid.

39. Christopher Genovali, “Multinational Pulp Company SLAPPs Suit Against Activist Group,” Alternatives Journal, Vol. 22, No. 3, 1996.

40. Daishowa Inc. v. Friends of the Lubicon (1995), 30 C.R.R. (2d) 26 (Gen. Div.). The corporation immediately filed an appeal which resulted in reinstatement of the injunction against the FOL’s boycott activities more generally. This higher court ruling was later expanded to prohibit the defendants, their attorneys, and even selected expert witnesses from publicly discussing the case; Christopher Genovali, “Daishowa Tries to Gag Critics,” Alternatives Journal, Vol. 23, No. 2, 1997.

41. Verdict, p. 50.

42. Ibid., pp. 72, 68, 76.

43. Ibid., p. 76.

44. Ibid., pp. 42-3. MacPherson’s description of the situation in which the Lubicon have been placed should be compared with the explanation offered by the Saudi delegate to the drafting committee of what was/is meant by the language contained in Article II(c) of the 1948. This includes not only the “planned disintegration of the political, social or economic structure of a group or nation,” but the “systematic debasement of a group, people or nation”; quoted in Davis and Zannis, Genocide Machine, p. 19.

45. Among the expert witness submissions MacPherson ignored were an article, “Modern Genocide,” prepared by the McGill University law faculty and published in Quid Novi on November 30, 1987 (submitted in evidence as Defense Exhibit 30; Thomas Affidavit); a 1990 letter to Prime Minister Brian Mulroney prepared by the late James J.E. Smith, Curator of North American Ethnography for the Museum of the American Indian/Heye Foundation, in which it is concluded that “social and cultural genocide” is being perpetrated against the Lubicons (Defense Exhibit 4; Ominiyak Affidavit); a 1995 affidavit prepared by Dr. Joan Ryan, an anthropologist who combined 15 years experience documenting the destruction of Lubicon society with the very dictionary definitions the judge relied upon in arriving at an diametrically opposing conclusion. Both Dr. Ryan and I presented direct testimony during the trial. None of this is so much as mentioned in the Verdict.

46. Verdict, p. 71. MacPherson in fact quotes three different dictionaries, none of which posits “intentional killing” as synonymous with genocide. Webster’s refers to “the deliberate and systematic destruction of a racial, political or cultural group (emphasis added).”

47. MacPherson claims to have followed the dictum that “defamatory meaning must be one which would be understood by an ordinary and reasonable person”; Verdict, pp. 70-1. He neglects to mention, however, that the rule pertains only to instances where the terms at issue are not defined in law; R.E. Brown, The Law of Defamation in Canada (2nd ed., Vol. 1, p. 52).

48. Even MacPherson seems a bit uncomfortable with his definition. He suggests at one point that “physical destruction” rather than direct killing alone might add up to genocide. But then, apparently realizing that the sorts of conditions he’s already conceded the Lubicons are suffering would all too obviously fit this description, he simply drops the subject; Verdict, p. 71.

49. Ibid., p. 76.

50. Ibid., p. 39. This clearly goes to compelling the employment of euphemisms, the purpose of which is well-known. The Nazis, after all, referred to their Judeocide as the “Final Solution,” the transport of Jews to Auschwitz and other extermination centers as “Resettlement,” the literal killing therein as “Special Handling.” Such innocuous terminology was designed to obscure genocidal reality and thus constrain the probability of popular revulsion and unrest.

51. Lipstadt, Denying the Holocaust, pp. 7-8.

52. In the United States alone, nearly a hundred such peoples have been declared “culturally extinct” by the federal government during this period; Raymond V. Butler, “The Bureau of Indian Affairs: Activities Since 1945,” Annals of the American Academy of Political Science, No. 435, 1978, pp. 50-60.

53. The implications were brought out clearly in March 1974, when, in one of the few instances where charges of genocide were filed with the U.N. Secretariat, the International League for the Rights of Man, the Inter-American Association for Democracy and Freedom and several other organizations accused the government of Paraguay of physically exterminating the Aché Indians. Paraguay’s formal response to these allegations was that, “Although there are victims and victimizer, there is not the third element necessary to establish the crime of genocide—that is ‘intent.’ As there is no ‘intent,’ one cannot speak of ‘genocide’”; Paraguayan Minister of Defense, quoted in Norman Lewis, “The Camp at Ceclio Baez,” in Richard Arens, ed., Genocide in Paraguay (Philadelphia: Temple University Press, 1976) pp. 62-3.

54. Those who experience a visceral reaction to my “overstated” comparison should recall that Eichmann was not accused of actually killing anyone. Rather, he was convicted of having devoted his bureaucratic and technical expertise—that is, his intellect—to organizing the delivery of Jews and others to extermination centers; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 1964).

55. Unidentified Lubicon, quoted in Thomas Affidavit, p. 24.

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