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 appeal of federally appointed independent Kimberly Murray Special interlocutor regarding missing children and unmarked graves and burial sites—for the ICC to reconsider its decision not to investigate.

“Many of those who created this damage were never prosecuted,” Woodhouse Nepinak told CBC News. “It’s still painful for many survivors.”

The International Criminal Court (ICC) previously dismissed 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 that the ICC should reconsider because Indigenous children are still missing from the former institutions and the federal government has made no attempt to locate them or preserve those graves.

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

“And churches don’t give that information as freely as they should.”

Murray said crimes against humanity occurred almost daily in residential schools. 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 backs and spines and not knowing what they were for,” Murray said.

Jaime Battiste, parliamentary secretary to the minister of crown-indigenous relations, said he would like to know who will be held responsible by the ICC, which tries individuals, not states.

Battiste, who has residential school survivors in her family, said she believes the focus should be on healing within Indigenous communities.

“How do you track a country?” said Battiste, Liberal MP for Sydney—Victoria. “I would 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 1870 and 1997. As of 2021, the National Center for Truth and Reconciliation has documented more than 4,100 deaths of children at school. The total number is suspected to be much higher.

The ICC declined an interview but said in a statement that any individual or group anywhere in the world can submit information about alleged crimes to the ICC prosecutor.

Murray told CBC News he has sent his report to the ICC for review.

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

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

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

She said the ICC could also find that enforced disappearances took place in residential schools.

“This would go a long way to educate Canadians and give survivors and communities a sense of responsibility and justice to have this finding,” Murray said.

The case could be groundbreaking

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

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

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

Heidi Matthews, an assistant professor at York University’s Osgoode Hall School of Law 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 truly conduct their own investigations or prosecutions.

She said Canada could argue that it has a well-functioning legal system and that there has been no effort to shield anyone from criminal liability.

“None of this is real liability,” Matthews said. “What we have then is a system … of minimization and partial recognition rather than real accountability.”

Martha Sutherland begins a search this week on the grounds of the former St. Anne of Fort Albany, Ont. She is searching for the remains of her uncle Michael Sutherland, who was 13 when he and two other children disappeared in 1941 from the institution.

Sutherland said the ICC should get involved because residential school survivors have waited too long to act and Canada cannot be trusted to be accountable.

“How can we expect their own justice system (Canada) to bring out the truth? It just doesn’t work,” Sutherland said. “We have to take it internationally.”