This thesis makes the legal argument that certain histories of aboriginal child
removals in Canada and Australia, that is, the residential school experience in Canada, and
the program of child institutionalization in Australia, meet the definition of 'genocide' in
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.
My primary focus is on that Convention's requirement that an act be committed with an
"intent to destroy a group". My first concern in formulating legal argument around the
Convention's intent requirement is to offer a theory of the legal subject implicit in legal
liberalism. Legal liberalism privileges the individual, and individual responsibility, in order
to underscore its founding premises of freedom and equality. The intentionality of the
subject in this framework is a function of the individual, and not the wider cultural and
historical conditions in which the subject exists. Using a historical socio-legal approach, I
attempt to develop a framework of legal subjectivity and legal intent which reveals rather
than suppresses the cultural forces at work in the production of an intent to genocide.
Having reacquainted the subject with the universe beyond the individual, I move
on with the first limb of my legal argument around intent in the Genocide Convention to
address the systemic means through which child removal policy was developed and
enforced. In this, I confront two difficulties: firstly, the difficulty of locating in any single person
an intent to commit, and hence responsibility for, genocide; and secondly, the
corresponding difficulty of finding that a system intended an action in the legal sense. I
respond to both of these difficulties by arguing for a notion of legal subjectivity which
comprehends organisations, and correspondingly a notion of intent which is responsive
(both on an individual and an organisational level) to systematically instituted crimes such
as genocide.
The second limb of my argument around intent confronts the defence of
benevolent intent. In this defence, enforcers of child removals rely on a genuine belief in
the benevolence of the 'civilising' project they were engaged in, so that there can be no
intent to destroy a group. I reveal the cultural processes at work to produce the profound
disjunction between aboriginal and settler subjectivities, especially as those subjectivities
crystallize around the removal of aboriginal children. I locate this disjunction in the twin
imperatives of colonial culture, those of oppression and legitimation. I argue that colonial
culture exacts a justification for oppression, and that aboriginal people have been
"othered" (in gendered, raced, and classed terms) to provide it. Intent to destroy a group,
then, will be located via an enquiry which confronts the interests of colonial culture and
aligns them firstly with the oppression of aboriginal people, and secondly with the
discourses which developed to render that oppression in benevolent terms. The
interpretation of the Genocide Convention is thus guided by the demands of context: and
in context is revealed an intent to genocide by child removal. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/8157 |
| Date | 11 1900 |
| Creators | Jago, Jacqueline |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 10820813 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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