Ariel Bultz, ‘Redefining Apartheid in International Criminal Law’, Criminal Law Forum (2013)

This article asks: to what extent is Article 7(1)(j) of the Rome Statute—the crime of apartheid—a tenable crime in international criminal law? It will be argued that despite the obligations incumbent on states not to intentionally discriminate against social groups, there is no customary legal norm of apartheid as a distinct crime against humanity. This is premised on the distinction between state obligations as different from norms demanding individual liability in international criminal law, as well as inadequacies of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the absence of case law relying on apartheid as a crime against humanity. Further, the weaknesses hindering the formation of a customary norm of apartheid as a distinct crime against humanity will be assessed with regard to the Rome Statute. Also it will be shown that the lack of coherence of Article 7(1)(j) demonstrates that the crime of apartheid is subsumed by the crime of persecution. Finally, two suggestions are offered on how the crime of apartheid could be established as a distinct offence in international criminal law. The central thesis of this paper is that the crime of apartheid is ambiguous and inoperable. In order for Article 7(1)(j) to be relevant in international criminal law, the offence must be reworked and clearly articulated.

David MacDonald and Graham Hudson, ‘The Genocide Question and Indian Residential Schools in Canada’, Canadian Journal of Political Science/Revue Canadienne de Science Politique 45, 2 (2012).

The Truth and Reconciliation Commission has been investigating the array of crimes committed in Canada’s Indian Residential Schools. Genocide is being invoked with increasing regularity to describe the crimes inflicted within the IRS system, the intent behind those crimes, and the legacies that have flowed from them. We ask the following questions. Did Canada commit genocide against Aboriginal peoples by attempting to forcibly assimilate them in residential schools? How does the UN Genocide Convention help interpret genocide claims? If not genocide, what other descriptors are more appropriate? Our position might be described as “fence sitting”: whether genocide was committed cannot be definitively settled at this time. This has to do with polyvalent interpretations of the term, coupled with the growing body of evidence the TRC is building up. We favour using the term cultural genocide as a “ground floor” and a means to legally and morally interpret the IRS system.

Tom Pessah, ‘Violent representations: hostile Indians and civilized wars in nineteenth-century USA’, Ethnic and Racial Studies, iFirst (2013).

Between the seventeenth and nineteenth centuries, white settlers officially labelled most conflicts with Native Americans as ‘wars’, unlike the ‘massacres’ white settlers experienced. This differential description indicated each race’s respective ‘civility’ and ‘savagery’. Indiscriminate warfare was officially attributed solely to Indians, despite much contrary evidence. State bodies’ recognition of conflicts as ‘wars’ was also necessary for the remuneration of the militia, who exercised much of this organized violence. While historians have ascribed this differential representation of the violence to consensual white cultural chauvinism, I emphasize that it was contested from within the settler community, and needed to be continuously maintained. A comparison of an 1864 Colorado conflict to an 1860 California one demonstrates how local coalitions dominated by landowners and politicians usually managed to officially designate the militia’s violence as civilized ‘wars’ against ‘hostile Indians’. In the exceptional Colorado case, federal intervention disrupted this pattern.

Ellen Smith, ‘White Aborigines: Xavier Herbert, P. R. Stephensen and the Publicist’, Interventions: International Journal of Postcolonial Studies (2013).

This essay explores the way ideas about Aboriginality informed right-wing nationalist projects in Australia in the 1930s. Focusing on the publication by the proto-fascist Publicist group of Xavier Herbert’s classic anti-racist protest novel of the Australian frontier, Capricornia, I unpack the unlikely logic by which a deep identification with Aboriginality and with the political struggle for Aboriginal rights is at the core of a set of fantasies about white Australian ethnicity and the great Australian novel. Recent scholarship on race and Australian nationalism ties nationalist investments in a traditional Aboriginal presence to the dismantling of the white Australia policy and the rise of the liberal multicultural state. Attending to the earlier history of Aboriginal appropriation reveals the unstable place of the Aboriginal figure on the political right. I argue that Herbert’s novel stages the relationship between a white father and his mixed-race Aboriginal son as the potential site of legitimate white Australian belonging. Ultimately, however, the Aboriginal woman carries the violence of Herbert’s attempt to turn the white colonizer into a national indigene.

Brian Egan, ‘Towards Shared Ownership: Property, Geography, and Treaty Making in British Columbia’, Geografiska Annaler: Series B, Human Geography 95, 1 (2013).

In British Columbia, Canada’s westernmost province, unresolved Aboriginal claims to land remain highly contentious. Since the early 1990s, a unique treaty negotiation process has sought to resolve questions about land ownership and establish a new relationship between Aboriginal peoples and the Crown. After almost two decades, the limitations of this treaty process are increasingly evident and answers to the land question remain elusive. This article examines this treaty-making process through a property lens, focusing on how particular models of property are privileged by and produced through this approach to treaty. I argue that the treaty process, as currently structured, works to entrench dominant Western forms of property across Aboriginal territories in a highly separate and unequal manner, and as such, serves to reinscribe asymmetrical relations of power between Aboriginal peoples and the Crown. To a considerable extent, this asymmetrical approach to property making explains the lack of progress towards treaties. The final part of the article explores alternative approaches to treaty proposed by Aboriginal groups. I argue that these proposals, which reflect Aboriginal understandings of property, offer a new and more promising direction for treaty making. In particular, the emphasis on sharing lands and resources, as well as the wealth generated from these, provides a path to reconcile competing property interests and to build a new and more respectful relationship between the Crown and Aboriginal peoples. I suggest that the difficulties of treaty making in British Columbia reflect broader challenges associated with land restitution and reconciliation in settler colonies.

David B. MacDonald, ‘Reconciliation after Genocide in Canada: Towards a syncretic model of democracy’, AlterNative 9, 1 (2013).

Despite recent claims by Saul (2008) that Canada’s federal and provincial systems of government, including its justice systems, have been strongly influenced by Aboriginal peoples, this article advances that any infl uence has been largely coincidental. A detailed critical appraisal of Saul’s work reveals a romanticized glossing over of Aboriginal–settler history rather than a detailed engagement with it. Taking Saul’s purported goals rather than his analysis as a starting point, this article seeks to examine ways in which provincial and federal government legislative institutions might better incorporate (some) Aboriginal conceptions of power, justice, and decision- making. In so doing it argues for a process of “syncretic democracy,” which includes symbols, ceremonies, guaranteed Aboriginal seats in existing institutions, potentially new institutions, and a much larger process of deliberation around how best to indigenize (and change) Canada’s institutions.

Magdalena Naum and Jonas M. Nordin (eds), Scandinavian Colonialism and the Rise of Modernity: Small Time Agents in a Global Arena, vol. 37 of Contributions To Global Historical Archaeology (2013).

William Gallois, ‘Genocide in Nineteenth-Century Algeria’, Journal of Genocide Research 15, 1 (2013).

While the French colony of Algeria was known to have been a violent place, historians have rarely compared the specificities and contours of its violent culture with those of other nineteenth-century settler colonies such as Australia and America. This review article asks why this has been the case and whether new definitions of genocide that have emerged from the study of other colonies might not be applied to Algeria. It contends that the systematic qualities of organised French violence—chiefly in the form of massacres known as ‘razzias’—have been underestimated and that the Algerian case merits study by functionalist and intentionalist scholars of genocide. While work still needs to be undertaken connecting French ‘exterminationist’ literatures to the practice of mass killing in the colony, a series of recent histories of Algeria have suggested that traditional literatures underestimated the scope and effects of French violence upon the indigenous peoples of Algeria.

Dane Kennedy, The Last Blank Spaces: Exploring Africa and Australia (Harvard University Press, 2013).

For a British Empire that stretched across much of the globe at the start of the nineteenth century, the interiors of Africa and Australia remained intriguing mysteries. The challenge of opening these continents to imperial influence fell to a proto-professional coterie of determined explorers. They sought knowledge, adventure, and fame, but often experienced confusion, fear, and failure. The Last Blank Spaces follows the arc of these explorations, from idea to practice, from intention to outcome, from myth to reality.

Those who conducted the hundreds of expeditions that probed Africa and Australia in the nineteenth century adopted a mode of scientific investigation that had been developed by previous generations of seaborne explorers. They likened the two continents to oceans, empty spaces that could be made truly knowable only by mapping, measuring, observing, and preserving. They found, however, that their survival and success depended less on this system of universal knowledge than it did on the local knowledge possessed by native peoples.

While explorers sought to advance the interests of Britain and its emigrant communities, Dane Kennedy discovers a more complex outcome: expeditions that failed ignominiously, explorers whose loyalties proved ambivalent or divided, and, above all, local states and peoples who diverted expeditions to serve their own purposes. The collisions, and occasional convergences, between British and indigenous values, interests, and modes of knowing the world are brought to the fore in this fresh and engaging study.

Jason Baird Jackson, ‘The Story of Colonialism, or Rethinking the Ox-Hide Purchase in Native North America and Beyond’, Journal of American Folklore 126, 499 (2013).

In this paper I offer a comparative assessment of the ox-hide purchase narrative (tale type AT 2400, ATU 927C*; Motif K185.1) in Native North America. Drawing on my own fieldwork and the beginnings of a historic-geographic treatment, I consider the story from the perspective of work on historical consciousness in Native North America and treat it as an opportunity to establish a link between folkloristics and other fields concerned with interpreting the legacies of colonialism.