National chief says ICC should probe disappearances of children from residential schools

The national chief of the Assembly of First Nations says the International Criminal Court should investigate the disappearance of Indigenous children from Canadian residential schools.

Cindy Woodhouse Nepinak said she supports the call by Kimberly Murray — the federally-appointed Independent Special Interlocutor on Missing Children and Unmarked Graves and burial sites — for the ICC to reconsider its decision not to investigate.

“A lot of the people that did create these harms were never prosecuted,” Woodhouse Nepinak told CBC News. “It’s still hurtful to so many survivors.”

The International Criminal Court (ICC) previously turned down a case related to the residential school system because it only has jurisdiction over crimes committed on or after July 1, 2022.

In her final report, Murray argued the ICC should reconsider because Indigenous children are still missing from the former institutions, and the federal government hasn’t attempted to find them or to preserve those graves.

“Canada is not providing access to the records that communities need to identify where the children were transferred to, where they died and where they’re buried,” Murray said.

“And the churches aren’t providing that information as freely as they should.”

Murray said crimes against humanity happened in residential schools almost daily. She called for an investigation into survivors’ accounts of seeing babies burned in incinerators and medical experiments on children.

“I’ve heard from survivors who talk about needles being put in their back and in their spine and they don’t know what they were for,” Murray said.

Jaime Battiste, parliamentary secretary to the Minister of Crown-Indigenous Relations, said he’d like to know who would be held responsible by the ICC, which tries individuals, not states.

Battiste, who has residential school survivors in his family, said he thinks the focus should be on healing within Indigenous communities instead.

“How do you prosecute a country?” said Battiste, Liberal MP for Sydney—Victoria. “I’d focus my efforts on what we can do in this country, as opposed to international boards.”

More than 150,000 First Nations, Métis and Inuit children were forced to attend church-run, government-funded residential schools between the 1870s and 1997. As of 2021, the National Centre for Truth and Reconciliation had documented more than 4,100 deaths of children at the schools. The total number is suspected to be much higher. 

The ICC declined an interview but in a statement said any individual or group from anywhere in the world may send information on alleged crimes to the ICC prosecutor.

Murray told CBC News she has sent her report to the ICC for consideration.

Legal experts say the pathway to opening an investigation is faster if a state requests it — which is why Murray said Canada should refer the matter to the ICC. 

Justice Minister Arif Virani said the federal government has not yet done a full analysis of Murray’s report but is looking to respond soon.

Murray said there are individuals still alive who could be investigated, including those who directed the residential school system and those responsible for blocking access to documents.

She said the ICC could also make a finding that enforced disappearances took place at residential schools. 

“That would go a long way for educating Canadians and for giving survivors and communities some sense of accountability and justice to have that finding,” Murray said.

Case could be groundbreaking

Mark Kersten, who worked in Murray’s office as an external researcher on international law from the fall of 2022 until the spring of 2024, said such a case would set a precedent.

Kersten said it would mark the first time a crime against humanity involving enforced disappearances was considered an ongoing crime, and could set terms on whether families and communities should be considered victims.

“It would be absolutely groundbreaking,” said Kersten, an assistant professor of criminal justice at the University of the Fraser Valley in B.C.

Heidi Matthews, assistant professor at Osgoode Hall Law School at York University in Toronto, said the case could face admissibility hurdles.

Matthews said the ICC is meant to be a court of last resort, to be used when domestic jurisdictions are unwilling or unable to genuinely carry out their own investigations or prosecutions.

She said Canada could argue that it has a well-functioning legal system and there hasn’t been an effort to shield any individuals from criminal responsibility.

“None of that amounts to actual liability,” Matthews said. “What we have then is a system … of minimization and partial acknowledgement rather than actual accountability.”

Martha Sutherland is beginning a search this week on the grounds of the former St. Anne’s Indian residential school in Fort Albany, Ont. She’s looking for the remains of her uncle Michael Sutherland, who was 13 years old when he disappeared with two other children in 1941 from the institution.

Sutherland said the ICC should get involved because residential school survivors have waited too long for action and Canada can’t be trusted to hold itself accountable.

“How can we expect their [Canada’s] own justice system to bring out the truth? It just doesn’t work,” Sutherland said. “We need to take it to the international level.”