The Return of Famines and the Pursuit of Accountability

11 July 2019 by Catriona Murdoch

The ‘F’ word is back in use, famines have returned. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. People living in the Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid. 

The current scale of suffering and death as a result of these crimes is unprecedented in modern history: Yemen alone promises to be the most severe famine in living memory, with recent news of the World Food Programme having to suspend some of their operations due to the obstruction and diversion for profit of their food aid. The statistics are dire with 400,000 severely and acutely malnourished children under the age of five. Yet recognition of the deliberate nature of famine, attribution of fault and accountability remains elusive. 

We are at the start of a long road to criminalise starvation in a way that properly recognises the causes, identifies the culprits and correctly labels their crimes. Despite the birth of modern international criminal law over the last 25 years, there has been a dearth of prosecutions for starvation crimes. As we have seen with all kinds of international crimes, the relevant conduct needs to move beyond the confines of the battlefield and the classroom and into the courtroom. Then the law may be identified, clarified, and codified so that a belligerent warlord or a government supplying arms used to starve become fearful of its reach. 

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The Crime of Starvation under the Rome Statute

Article 8(2)(b)(xxv) criminalises:

Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions.

A detailed analysis of the elements of the crime, including the crux of the offence, the specific intent to starve as a method of warfare, can be found here. 

For the purposes of this post I will focus on the central question often posed by civil society groups documenting and collecting on the ground and multilateral organisations engaged in accountability and analysis: 

how to identify the specific intent of the crime of starvation in a multi-causal environment?

An intention to starve may develop extemporaneously in the course of otherwise lawful or unlawful conduct, in which case the task of the tribunal will be to disentangle the intention to starve from multiple coexisting purposes (whether lawful or unlawful). There are challenges with any trial, especially those that seek to describe joint action and criminal purposes that span hundreds of kilometres and the actions of hundreds if not thousands of combatants and civilians. Notwithstanding that, assessing an accused’s acts and conduct in the midst of complex, fluctuating circumstances and contributory factors as part of regional or even countrywide enterprises are the bread and butter of ICL.

In the legal policy paper, we set out a four-point guide which can serve as an index of intent in the context of starvation. Following these indices are likely to provide cogent evidence of a perpetrator’s intent, criminal or otherwise:

1. Awareness of the risk that an interference with objects indispensable to survival would lead to starvation (including whether the deprivation occurs in pursuit of an ostensibly lawful purpose);
2. Respect for the full range of relevant IHL prohibitions (e.g., the prohibition against terrorising the civilian population; the prohibition against collective punishment; the prohibition on the use of human shields and the prohibition against displacement);
3. The respect for IHL principles that create positive obligations applicable in the context of the conduct of hostilities; and
4. The concrete steps taken (or not taken) by the alleged perpetrator to ameliorate civilian suffering, particularly through the facilitation of access of the civilian population to objects indispensable to survival. 

In assessing the four indices above, pertinent considerations will include: the nature, manner, timing and duration of any deprivations or attacks on civilians, including whether such attacks were long-term, persistent and/or indiscriminate; whether the attacks were widespread or perpetrated by single or many military components; and whether they took place as part of a campaign that systematically targeted the victims, including on account of their membership in a particular group. This analysis should encompass all relevant issues, including the general context, the repetition of destruction and discriminatory acts, attacks against civilians more generally, involving a range of modes of perpetration, the scale of those attacks, and relevant policies or speeches encouraging the targeting those civilians.

The challenge for any ICC prosecutor in an Article 8(2)(b)(xxv) case will be to discern whether the alleged perpetrator, whilst pursuing other lawful or unlawful purposes, such as attacking objects indispensable to the survival of the civilian population which are also used in supporting military action, or in besieging areas primarily to starve out combatants to hasten their surrender, nonetheless alsointended to starve the civilian population as a method of warfare. In the event that the evidence establishes this criminal intent, the concurrent existence of other purposes will not insulate an accused from a finding of criminal responsibility. Notwithstanding that the process of disentangling these various purposes in order to ascertain an intent to starve is likely to be complex, these challenges are common across war crimes cases at the international and national level.

Conclusion

A starvation trial, whilst long overdue, is not the panacea, they are but one part of the journey. We must look more broadly at the full suite of transitional justice and accountability tools. However, we must first deal with the misconceptions surrounding starvation that conveniently lapse into inertia and fatalism. Accountability will start to debunk the myths that circle starvation. Climate, overpopulation, poverty, pre-existing food insecurity, or that starvation is purely an African problem, need to be re-assessed and roundly dismissed. Only when an understanding of the man-made causes of starvation emerges, can we expect change. 

Notwithstanding our analysis of the crime and the clarity we aim to bring to practitioners, it is only when starvation enters the legal zeitgeist will prosecutions produce a more singular definition of the crime of starvation. Only once there is legal precedent on how to apply the law to the facts on the ground, will we have the tools to authoritatively understand the contours of the offence.

This blog piece draws heavily on Global Rights Compliance’s (GRC) legal policy paper and a forthcoming article in the Journal of International Criminal Justice (JICJ) drafted by GRC’s managing partner Wayne Jordash QC, and GRC lawyers Catriona Murdoch, Margherita Stevoli, Joe Holmes and Anna Mykytenko. The legal policy paper is part of a Starvation Compendium being launched this month. The Policy Papers are part of the project run by GRC and the World Peace Foundation, entitled “Accounting for Mass Starvation: Testing the Limits of the Law” supported by The Kingdom of the Netherlands Ministry of Foreign Affairs. For more information and access to the Starvation Compendium Papers see www.starvationaccountability.org. The views expressed in this post and the Starvation Compendium are those of the author(s) and may not coincide with the official position of The Kingdom of the Netherlands.

For more information on the Project please visit www.starvationaccountability.org. For more information on the Project Partners please visit www.globalrightscompliance.comand https://sites.tufts.edu/wpf/. To listen to the Law Pod UK podcast on starvation as a weapon of war please visit here.