More than a dozen lawyers from across Canada have formally requested the International Criminal Court (ICC) investigate the Canadian government and the Vatican for crimes against humanity following preliminary reports that the remains of an estimated 215 children were discovered at the former Kamloops Indian Residential School.
Fifteen lawyers, headed by Calgary counsel, have made the request to the ICC's chief prosecutor Karim Khan.
If it happens, the investigation could lead to the prosecution of "employees, agents and actors" of the Catholic Church and Government of Canada who were involved in either the creation and/or coverup of the burial grounds, said Calgary lawyer Brendan Miller.
"We don't know the names of these children. They were intended to be erased," Miller said.
"It has taken this event to shame people into action — the time for gestures is over."
Crimes against humanity
The ICC, which prosecutes cases only when countries are unwilling or unable to do so, has the power to compel involved parties to disclose all documents and information related to the investigation.
The lawyers say the deaths, graves and treatment of children who were under government and church care is evidence of crimes against humanity and they want the ICC to "do whatever it takes to unearth the facts."
Located in The Hague, the ICC has jurisdiction to investigate and prosecute four types of crimes — one of which being crimes against humanity — which are "serious violations committed as part of a large-scale attack against any civilian population."
Included in the 15 types of crimes against humanity are murder, rape, imprisonment, enforced disappearances and enslavement – particularly of women and children.
1 in 50 children died at school
The Tk'emlúps te Secwépemc First Nation said last Thursday that preliminary findings from a survey of the grounds conducted by a 'specialist in ground-penetrating radar' indicated the remains of an estimated 215 children were on site.
The Truth and Reconcilliation Commission (TRC) previously recorded and published the names of more than 60 children who died at the Kamloops Indian Residential School, but Tk'emlúps te Secwépemc Kukpi7 (Chief) Rosanne Casimir has said the remains are "undocumented deaths."
More than 150,000 First Nations, Métis and Inuit children were placed in residential schools between the 1870s and 1990s.
At least 4,100 students — more than one in 50 — died while attending such schools. The TRC estimates the actual number could be 6,000 or higher.
'An obligation not felt'
The TRC released 94 calls to action six years ago, making six recommendations specific to missing children and burial grounds at residential schools including that the Government of Canada and the Vatican assist in uncovering the details.
"Thus far, neither the federal government nor the Vatican has taken the actions required to respond to these expectations," reads a statement sent on behalf of the coalition of lawyers.
The group has invited other lawyers across the country to endorse the application to the ICC.
"An obligation not felt is not an obligation," wrote Donna Kennedy-Glans, a former member of Alberta's Legislative Assembly who founded a non-profit now working on First Nations reserves in Alberta.
'Justice … must be seen to be done'
Former Alberta justice minister Jonathan Denis said there's a need for an independent investigation, "with a view to the public's confidence in the justice system."
"It is often said that justice must not only be done, but also must be seen to be done," Denis said.
At one time the Kamloops Indian Residential School, which operated from 1890 to 1978, was the largest of its kind in Canada.
Although the Rome Statute — the court's founding treaty — only gives the ICC jurisdiction to investigate crimes which took place on or after 2002, ongoing coverup beyond that date could make the Kamloops discovery eligible for investigation.
If the ICC agrees to look into the matter, it would first conduct a preliminary examination before an investigation would take place.
According to the ICC's website, the Office of the Prosecutor would have to determine there is "sufficient evidence of crimes of sufficient gravity falling within the ICC's jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims."