Today’s Genocide in America

CriteriOn 1: A Sustained Attack to Destroy a Group

Genocide is indicated when there is a sustained attack by a perpetrator to physically destroy a group.

• Did the deaths occur as a result of a single attack or a series of attacks by the perpetrator?
• What tactics were used to maximize the number of victims? Where they rounded up or concentrated within an area? Where the victims isolated from other groups? Is there evidence that those carrying out the murders received direction or were expected to report on progress?
• What methods, besides direct killing, were used to destroy the victims or their identity as a biological or social group? Genocidal actions might include poisoning air or water, imposing starvation or disease, sexual torture or rape, involuntary transfer of children or preventing birth.
• What was the duration, the sequence of actions and the number of victims?

Criterion 2: Organized or Collective Perpetrators

Genocide is never the act of a single individual. So, we need to know whether the perpetrators acted as a group or were organized.

• Were the perpetrators part of a military force, a paramilitary force or an informal band or militia?
• Were there common sources of leadership or common characteristics of membership among the perpetrators? For instance, were the perpetrators members of a particular ethnic or political group? Did a common group of leaders seem to direct activities of different groups? Were perpetrators recruited from particular groups?
• Were the perpetrators authorized by the state or by a counter-authority?
• To whom were the perpetrators responsible? The state? The military? A political party? A religious or ideological group?
• Did the perpetrators’ clothes give away any affiliation?

Criterion 3: Victims Are Group Members

In genocide, victims are chosen because they are members of a particular group.

• Were the victims chosen regardless of whether they had individually done anything wrong?
• Were victims chosen based on an official state designation, on their own group criteria or on some characteristic (like language, religion or physical traits) that defined them as a group?
• Were the victims chosen based on their status within their group? For instance, were the victims educated or members of religious clergy?
• What is the basis of the victims’ group identity (for example, religion, race, ethnicity or language)?
• Were the victims pre-selected for murder? Evidence that victims were preselected include:
  • Victims are stripped of citizenship, civil rights, state benefits or legal recognition,
  • Victims are segregated and marked (for example, made to carry identification cards or wear something that identifies them as a member of the group),
  • Victims are rounded up into ghettos or concentrated in some area or camp.

Criterion 4: Victims Are Defenseless or Had Surrendered

Genocide is about destroying the group, whether or not they offer armed resistance. Were the victims defenseless or were they killed even after they had surrendered?

• Is part of the victim group armed and able to resist?
• Is the victims’ level of armament sufficient to resist the perpetrators? Do they state that their goal is war against the perpetrators or do they fight simply to defend themselves?
• Is there evidence, if the victims were armed, that they were killed even after they had surrendered? Is there evidence that unarmed victims were systematically killed?

Criterion 5: The Goal Is Murder [of a group as a group not all members of a group need be exterminated]

The intention of the attacks was to kill the victims and the murder was sanctioned by the perpetrators.

• Can the victims’ deaths be explained as accidental?
• Is there evidence that the destruction was repeated or was carried out by design?
• Is there evidence that orders or authorization were given for the destruction?
• What was the level of the authorization?
• Is there prima facie evidence that the destruction was planned and organized? Do the actions and behaviors of the perpetrators make it appear that there was some authority guiding and organizing the destruction?
• Is there any evidence that perpetrators face negative consequences for their actions?

Bottom Line

The charge of genocide is highly charged and contentious. Not only does alleging genocide imply things about the intentions and moral quality of the perpetrators of the violence, it also puts a moral responsibility on others in the international community. If the violence is truly genocide, then inaction is unacceptable. So, both perpetrators and bystanders have incentives to deny that the label “genocide” fits a particular situation.

The above criteria and questions are aimed to provide some way of determining whether genocide is the right way to describe an instance of mass political violence.

Reference: https://clg.portalxm.com/library/keytext.cfm?keytext_id=162

Additional Comments Jim Craven/Omahkohkiaaiipooyii

Next time you run into a lawyer from the U.S. or Canada, please ask them the following questions:

1) In law school and on your bar exam were you ever exposed to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide?

2) In law school and on your bar exam, were you ever exposed to the Vienna Convention on Treaties the most generally accepted international law and convention on treaties and canons of treaties?

3) In law school and on your bar exam were you ever exposed to the legal and logical reasoning behind supremacy clauses (e.g. Article 6 Sec 2 U.s.  Constitution), hierarchies of authority, equal status, lack of unconscionability and specificity in terms in all covenants, contracts, treaties and constitutions?

4) In law school and on your bar exam were you ever exposed to the argument that: Since all treaties are voluntary covenants between nation-states, since all nation-states have their own often conflicting constitutions and laws as well as sovereignty, since all nation-states signing treaties are binding their citizens and residents to the terms of the treaty into the future, thus, and according to Article 29 of the Vienna Convention on Treaties and International law,  treating partners must be tacitly, if not explicitly, be recognizing and accepting as de-facto, not only each other’s state representatives and signatories as having the sovereignty and authority, under international law, to sign the treaty and bind their respective populations to its terms until exited under legal terms,  they are also accepting at least de facto,  the systems of selection and governance of the nation-states signing the treaties?

5) In law school and on your bar exam were you ever exposed to the actual definitions in Article II of the 1948 UN Convention on Genocide? And do you know when Canada and the U.S. ratified the Convention to become part of (and if need be trumping under the Supremacy Clauses of the Constitutions of Canada and the U.S.) the “Supreme Law” of Canada (1953) and the U.S. (1988? 9 U.S. allies do not recognize the U.S. as a signatory to the 1948 UN Convention due to the Helms-Hatch-Lugar “Sovereignty Exemption” Bill that violates Article 6 Sec 2 of the U.S. Constitution. [Note: treaties are assumed to be voluntary covenants and one party could easily demand of the other party that all terms be strictly obeyed while serially violating the terms of the treaty to which all parties are bound, and gaining materially what was intended all along, all under the banners of “national sovereignty or security”. International law, like all law says you don’t like some terms, don’t sign or find a way to modify it; but no unequal treatment or selective obedience under law.]:

6) Ask them to deal with this:

http://www.chgs.umn.edu/histories/victims/nativeAmerican/index.html

Specifically, in his opening argument at Nuremberg, the U.S. Chief Prosecutor Justice Robert Jackson noted:

“Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events…Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes [but] we must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice. “(Nuremberg transcript)

In his opening address, the U.S. Prosecutor, Justice Robert Jackson noted:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs, which we seek to condemn and punish, have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captives to the judgment of the law is one of the most significant tributes that Power has even paid to reason.”

There was more than grotesque irony and hypocrisy in this statement. The architect (Hitler) of many of the very crimes and policies committed by the Nazis and their collaborators for which they were being tried at Nuremberg, had been directly “inspired” by aspects of U.S. and Canadian histories, policies and actions related to Indigenous Peoples. According to James Pool in his book Hitler and His Secret Partners:

The calculated, systematic and ongoing violations of Articles I to IX of the UN Convention on the Prevention and Punishment of the Crime of Genocide, by the Governments of the United States of America and Canada, along with Articles I to IX themselves, and all authority under international law recognizing/supporting the sovereignty and self-determination of the Blackfoot Nation and People, legitimate and give “standing” and authority to this Tribunal of the Blackfoot Nation. The Governments of the United States of America and Canada have refused to recognize, and have sought to exterminate, the traditional elements, authorities and institutions of the Blackfoot Nation and replace them with collaborationist elements and institutions that would/could never charge those Governments of crimes against international law or with crimes against their own laws even if they were so inclined and the evidence mandated such charges.

The Governments of the United States and Canada have refused to allow their own genocidal policies and actions to be submitted to the ICJ and have refused to recognize traditional Blackfoot authorities or institutions as having “standing” or authority to bring charges at the ICJ and have been refused/obstructed in any real exercises in Blackfoot self-determination that would result in the Blackfoot Nation and its traditional authorities and institutions having standing and becoming/being recognized as a “Contracting Party” able to bring charges at the ICJ. The U.S. Government has refused to accept the authority of the ICJ on any matters other than those related to “commercial affairs”. The narrow language of the UN Convention on Genocide has been selectively interpreted by the Governments of the United States of America and Canada in such ways as to allow those who practice genocide and other crimes against international law to either physically eliminate and/or summarily non-recognize any victims, evidence or traditional institutions that might bring charges against them. This is like the Nazis recognizing only their puppet/collaborationist regimes in the occupied territories as being “Contracting Parties” or “competent authorities” with the “standing” to charge them with various crimes, and, recognizing only Nazi courts as the legitimate venues in which any charges could be brought.

The long history of barbaric, criminal and genocidal activities committed by the Governments of the United States and Canada and their accomplices, against Indigenous Peoples in general and Blackfoot People in particular, continues today. Every attempt to expose, stop and obtain redress for various criminal activities through the institutions of the perpetrators has been met with more denial, cover-up and repression. Further, attempts to establish a World Court or International Criminal Court free of the biases and influences of the perpetrators of crimes against Indigenous Peoples have been obstructed by those very perpetrators. We therefore assert this constituted Tribunal and its constituted authorities and procedures to be legitimate (in traditional Blackfoot Law and in International Law) in composition, location and standing. Any final decisions of this

Blackfoot Tribunal will qualify as binding “judicial decisions” within the meaning of Article 38 (1) (d) of the Statute of the International Court of Justice and will therefore constitute a “Subsidiary Means for the Determination of Rules of Law” for international Law and practice.

As the “Statute of the International Court of Justice” is an “integral part” of the United Nations’ Charter under Article 92 and to which both the U.S. and Canada are signatories, this Tribunal’s decision may be relied upon by some future International Criminal Court or Tribunal or by any People or State of the World Community. Were this not so, the Nazis of World War II, for example, could never have been brought to justice for crimes in “occupied territories” as the “designated representatives” and “recognized authorities” of the occupied nations and victims, supposedly charging and judging those Nazis, would have been the very collaborators and accomplices of the Nazis against whom also charges were also properly made and later proved.

Indeed, not one of those “governments” or “governmental agencies” recognized by the Nazis as “legitimate”, sat as judges and prosecutors at Nuremberg; they all sat as defendants. As to the standing, fairness and legitimacy of this Blackfoot Tribunal, composed of potential victims judging alleged victimizers, A. L. Good heart in his “The Legality of the Nuremberg Trials”, Juridical Review, April 1946, took on this argument succinctly:

“It has been argued that the Tribunal cannot be regarded as a court in the true sense because, as its members represent the victorious Allied Nations, they must lack that impartiality which is an essential in all judicial procedure. According to this view only a court consisting of neutrals, or, at least, containing some neutral judges could be considered to be a proper tribunal. As no man can be a judge in his own case, so no allied tribunal can be a judge in a case in which members of the enemy government or forces are on trial. Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has a right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because ‘a burglar cannot complain that he is being tried by a jury of honest citizens.”

III. SPECIFIC CRIMES AND VIOLATIONS OF INTERNATIONAL LAW

The traditionally recognized and responsible authorities of the Blackfoot Nation, present at this Tribunal and acting on behalf of the Blackfoot Nation and whole People, specifically charge that the Government of the United States of America and its agencies, the Government of Canada and its agencies, the British Crown authority in Canada and named Church or religious organizations resident on Blackfoot lands and/or in which Blackfoot were placed (Catholic Church, United Church, Anglican Church, LDS or Mormon Church, Presbyterian Church) directly committed, and/or conspired to commit, and/or sanctioned and tolerated, and/or facilitated, and/or covered-up, and/or refused to prosecute and/or obstructed the prosecution of and/or were willfully blind to the following crimes specified further in the following:

1) Article I of the UN Convention on Genocide;

2) Article II of the UN Convention on Genocide;

a) Killing Blackfoot persons as Blackfoot;

b) Causing serious bodily or mental harm to Blackfoot persons as Blackfoot;

c) Deliberately inflicting on Blackfoot persons and the Blackfoot Nation conditions of life calculated to bring about the destruction of the Blackfoot People and Nation in whole or in part;

d) Imposing measures intended to prevent biological reproduction of the Blackfoot People and Nation;

e) Forcibly transferring Blackfoot children to other (non-Blackfoot) groups, lands and cultures;

3) Article III of the UN Convention on Genocide;

4) Article IV of the UN Convention on Genocide;

5) Article V of the UN Convention on Genocide;

6) Article VI of the UN Convention on Genocide;

7) Article VII of the UN Convention on Genocide;

8) Article VIII of the UN Convention on Genocide;

9) Article IX of the UN Convention on Genocide;

10) Common Article 3 and Additional Protocol II of the Geneva Conventions of 1949;

11) Charter of the International Military Tribunal at Nuremberg:

A) Article 6

1) Crimes against Peace

2) War Crimes

3) Crimes against Humanity

B) Article 7

C) Article 8

12) Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal as adopted by the International Law Commission of the United Nations 1950 and UN General Assembly Resolution 177

a) Principle I

b) Principle II

c) Principle III

d) Principle IV

e) Principle V

f) Principle VI

g) Principle VII

13) Articles of the Statute of the International Criminal Court for Former Yugoslavia Specifying the Acts within the Court’s Jurisdiction

a) Article 2

b) Article 3

c) Article 4

d) Article 5

14) Articles of the Statute of the International Criminal Court for Rwanda Specifying the Acts within the Court’s Jurisdiction:

a) Article 2 (2, 3)

b) Article 3

c) Article 4

CONCLUSION

The Blackfoot Nation and People are on the verge of extinction. Victims of and witnesses to the various charged crimes are dying. Blackfoot People individually and collectively cannot wait for the formation of an International Criminal Court (blocked by the U.S. Government) to hear Blackfoot charges against the Governments of the U.S and Canada and other named parties. The Blackfoot and People cannot wait for the U.S. and Canadian Governments to allow charges to be heard by the ICJ at The Hague. The Blackfoot Nation and People Blackfoot cannot wait for the traditional authorities, institutions and self-determination of the Blackfoot Nation to be recognized and respected by the very Governments of the U.S. and Canada intent on elimination of the Blackfoot Nation and People and their self-determination. The Blackfoot Nation and People cannot wait for the U.S. and Canadian Governments to “decertify” and de-recognize their puppet and complicit entities (Tribal Councils, BIA and DIA) and to recognize the traditional authorities and institutions of the Blackfoot Nation that are certified and legitimated by the recognized right of and international law governing self-determination of the Blackfoot Nation and People.

For all of the above-mentioned reasons, and under all of the above-mentioned legal authority (and more to be specified later) this Tribunal, structured and conducted by the competent and traditionally recognized authorities and institutions of the Blackfoot Nation, has standing and authority under international law and any decisions or findings of this Tribunal can be considered binding judicial decisions under Blackfoot Law and International Law.

The competent, legal and traditional authorities of the Blackfoot Nation propose that ultimate authority and power is truth, reason, law and evidence. Power pays no real ‘tribute to reason’ when the conquerors put on trial—rather than summarily executing or jailing without due process—the conquered. Power pays only a ‘tribute to reason’ and law when the powerful submit to the very laws, standards, precedents and morality to which they purport to hold others and to which the powerful purport to be bound–by their own words and deeds.

We will hold these named Governments and agencies or entities to their own laws, words, precedents, deeds and professed values in addition to specific Blackfoot laws and values that they have violated and for which the Blackfoot Nation and People have sovereign rights to protect.

Finally, on the question of the amount of time that has lapsed since some or many of these alleged crimes have been committed (and we allege that many of the crimes continue in various forms today), we note that it is widely recognized in international law that there is no “statute of limitations” on gross violations of human rights (Article 1, “Convention on the Non-Applicability of Statutory Limitations on War Crimes and Crimes Against Humanity”, Nov. 26, 1968 see “A Comprehensive Handbook of the United Nations”, Vol. II, 1979) Also, under the U.S. Document “The Third Restatement of the Foreign Relations Law of the United States (Section 702):

“A state violates international law if, as a matter of State policy, it practices, encourages or condones: a) genocide; b) slavery or slave trade…g) a consistent pattern of gross violations of internationally recognized human rights”

“Hitler drew another example of mass murder from American history. Since his youth he had been obsessed with the Wild West stories of Karl May. He viewed the fighting between cowboys and Indians in racial terms. In many of his speeches he referred with admiration to the victory of the white race in settling the American continent and driving out the inferior peoples, the Indians. With great fascination he listened to stories, which some of his associates who had been in America told him about the massacres of the Indians by the U.S. Calvary. He was very interested in the way the Indian population had rapidly declined due to epidemics and starvation when the United States government forced them to live on the reservations. He thought the American government’s forced migrations of the Indians over great distances to barren reservation land was a deliberate policy of extermination.

 Just how much Hitler took from the American example of the destruction of the Indian nations his hard to say; however, frightening parallels can be drawn. For some time Hitler considered deporting the Jews to a large ‘reservation’ in the Lubin area where their numbers would be reduced through starvation and disease.” (p. 273-274).

And also from James Pool:

“ The next morning Hitler’s ‘plan’ was put in writing and sent out to the German occupation authorities as ‘The Fuehrer’s Guidelines for the Government of the Eastern Territories: ‘ the Slavs are to work for us. Insofar as we don’t need them, they may die. Therefore compulsory vaccination and German health services are superfluous. The fertility of the Slavs is undesirable. They may use contraceptives and practice abortion, the more the better. Education is dangerous.

It is sufficient… if they can count up to a hundred. At best an education is admissible which produces useful servants for us. Every educated person is a future enemy. Religion we leave to them as a means of diversion. As to food, they are not to get more than necessary. We are the masters, we come first.

Always contemptuous of the Russians, Hitler said: ‘For them the word ‘liberty’ means the right to wash only on feast-days. If we arrive bringing soft soap, we’ll obtain no sympathy…There’s only one duty: to Germanize this country by the immigration of Germans, and to look upon the natives as Redskins.’ Having been a devoted reader of Karl May’s books on the American West as a youth, Hitler frequently referred to the Russians as ‘Redskins’. He saw a parallel between his effort to conquer and colonize land in Russia with the conquest of the American West by the white man and the subjugation of the Indians or ‘Redskins’. ‘I don’t see why’, he said, ‘a German who eats a piece of bread should torment himself with the idea that the soil that produces this bread has been won by the sword. When we eat wheat from Canada, we don’t think about the despoiled Indians.” (James Pool, Ibid, pp. 254-255)

And from a speech by Heinrich Himmler (date not given):

“I consider that in dealing with members of a foreign country, especially some Slav nationality…in such a mixture of peoples there will always be some racially good types. Therefore I think that it is our duty to take their children with us, to remove them from their environment, if necessary, by robbing or stealing them… (Telford Taylor “Anatomy of the Nuremberg Trials”, Alfred A Knopf, N.Y. 1992, p. 203)

And from John Toland, preeminent biographer of Adolf Hitler:

“Hitler’s concept of concentration camps as well as the practicality of genocide owed much, so he claimed, to his studies of English and United States history. He admired the camps for Boer prisoners in South Africa And for the Indians in the Wild West; and often praised to his inner circle the efficiency of America’s extermination—by starvation and uneven combat—of the ‘Red Savages’ who could not be tamed by captivity.” (John Toland, “Adolf Hitler” Vol II, p 802, Doubleday & Co, 1976)

The U.S. Government and the Canadian Government (represented by the British Government) were major forces initiating and conducting the International Military Tribunals at Nuremberg and those Tribunals were a major force in the origination and content of the 1948 UN Convention on Genocide. Yet the U.S. Government did not ratify the UN Convention on Genocide until 1988, forty years after the original UN Convention on Genocide. Further, the U.S. government summarily placed a “restriction” on its ratification of the UN Convention on Genocide known as the “Lugar-Helms-Hatch Sovereignty Package” which stated in Article I (2):

“Nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”

This is a clear violation of Article 29 of the 1969 Vienna Convention on the Law of Treaties (recognized by the U.S. Supreme Court as the definitive international law on treaties) as it is in violation of Article VI, Section 2 of the U.S. Constitution itself:

“[treaties are] the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary

Notwithstanding.”

Documents of the U.S. Government reveal clearly consciousness of guilt on the part of the Government and its agencies. Debates in the U.S. Senate reveal that there was a general awareness of and fear that the U.S. Government could/would be charged with genocide and related acts for historical and present-day policies and actions related to African-Americans and American Indians.

The Government of Canada was even more disingenuous in its duplicity and attempts to appear to ratify the 1948 UN Convention on Genocide while effectively obstructing its recognition and application. The government of Canada put the crime of genocide in the criminal code of Canada as a crime. However, of the five specific acts mentioned as constituting genocide in Article II of the UN Convention on Genocide, three were deleted from the definition of genocide in the Canadian criminal code.

So from Article II of the Genocide Convention, b) “Causing serious bodily or mental harm to members of the group”, and d) “Imposing measures intended to prevent births within the group”, and e) “Forcibly transferring children of the group to another group” were deliberately not included in the Canadian criminal code definition of the crime of genocide. Only a) [deliberate] killing members of the group, and part of c) an intentional plan to “bring about the physical destruction the group in whole or in part” were retained. The clear intent was to make the definition of “intent” very narrow and the proving of mens rea or intent next to impossible–and therefore prosecution next to impossible to pursue. Indeed there has been only one case of anyone being charged with the Canadian Criminal Code’s “genocide” and that resulted in an acquittal.

For these and other clearly calculated, duplicitous and obstructionist machinations on the part of the Canadian and U.S. Governments and some of their agencies, they are also in violation of the following articles of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide:

Article I:

The contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law for which they undertake to prevent and to punish.

Article III

The following acts shall be punishable:

Genocide;

Conspiracy to commit genocide;

Direct and public incitement to commit genocide;

Attempt to commit genocide;

Complicity in genocide;

Article IV

Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V

The Contracting parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III

Article VI

Persons charged with genocide or any other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition In accordance with their laws and treaties in force.

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.