Famine and International Criminal Law Under the Rome Statute

Last week, Laurent Nkunda’s armed militias in war-torn eastern Congo raided, seized, and deliberately destroyed and burned refugee camps located north of Goma, the provincial capital of North Kivu. His strategic political goal was to spark a crisis and to bring about the conditions to demand direct negotiations with the Congolese government. Two days ago, a 12-truck UN aid convoy, protected by UN peacekeepers, reached the camps and confirmed that several camps were completely destroyed and their 50,000 occupants missing. With UN officials warning that the eastern Congo is on the brink of a “humanitarian catastrophe,” possibly more civilians will die from disease and starvation than bullets and physical violence. As UN officials and international leaders contend with the pros and cons of the strategic political and military options under international law to respond to rebel-led attacks on UN peacekeepers and civilians, this blog considers whether the international community can consider retributive justice through international criminal prosecution under the Rome Statute for deliberate acts leading to the starvation of civilians and explores proposals to amend the Rome Statute to strengthen food security protections for civilians.

UNICEF estimates that more than 1 million people currently are internally displaced in the North Kivu province and that “thousands have had very little to eat since fleeing.” See a map of the provinces. According to a press release by the World Food Programme (WFP) on 5 November 2008:

International Criminal Court Prosecutor Luis Moreno-Ocampo reiterated yesterday in a press release that his Office is “closely monitoring converging information about attacks against civilian populations, forced displacement of populations, murders, rapes, pillaging and looting, reported to be taking place in the recent armed confrontations in the province of North Kivu.” Further, he emphasized the ICC’s jurisdiction over crimes against the civilian population in the North and South Kivu provinces.

In his statement, Moreno-Ocampo did not address explicitly the potential criminal consequences of deliberate acts with direct and indirect consequences on malnutrition and starvation rates. Let’s look at the right to food security under international law, whether the ICC has jurisdiction over deliberate famine acts, the likelihood of a successful prosecution, and the pros and cons of five ways to strengthen legal accountability of leaders under international criminal law.

Deliberate interference with food supplies as part of political and military strategies is not new, particularly during internal conflicts and times of aggression and within non-democratic states. Such attempts to engineer famine domestically and extraterritorially, however, increasingly have gained greater moral, ethical, and political significance. For example, North Korea expelled the World Food Programme in 2005 and set the stage for a threatened famine in winter 2008. In Africa, the Sudanese government has destroyed food stocks and livestock in the war-torn Darfur region for strategic advantages. Further, Israel in 2007 blocked food supplies to the Gaza Strip.

The ongoing prevalence of “food as a weapon” against innocent civilians has increased international focus on intentional state-induced and conflict-induced famines and the potentially catastrophic and prolonged impacts to human lives. Three legal areas – humanitarian law, human rights law, and international criminal law – guarantee a right of minimal food security for civilian populations and the prohibition of deliberate acts to create, extend, or foster the conditions for famine or starvation of civilians, but they vary in their scope and application.

Right to Food Under International Humanitarian Law
International humanitarian law ensures minimum food security protections for civilians during times of armed conflict and occupation. Breaches of humanitarian law can implicate state obligations to respond to famine crises domestically and to avoid causing harm to citizens of other countries. Such breaches by states are enforceable before the International Court of Justice, international human rights bodies and courts, and national courts where domestic law allows. Furthermore, breaches arising from unlawful deliberate famine acts can result in international criminal prosecution of individuals under the Rome Statute of the International Criminal Court (ICC).

Right to Food Under International Human Rights Law
Similar to international humanitarian law, human rights law guarantees basic survival needs for civilians, such as food, health, and housing, but it differs in the scope of coverage. International humanitarian law solely applies during times of armed conflict and occupation. In contrast, international human rights law, which guarantees the right to health, applies at all times.

If the Right to Food Exists Under International Law, Why Isn’t There Enforcement?
Despite these legal obligations incumbent on governments, insurgents, and their respective leaders to safeguard the food security and basic survival needs of civilian populations during war and peace, state-supported and rebel-initiated acts of deliberate famine and starvation have persisted.

Legal scholars, such as Daniel Butler and David Marcus, have asserted that unchecked violations of existing international legal obligations to prevent deliberate famines arise largely from four causes:

Rome Declaration and the Plan of Action
Similarly recognizing and addressing these issues in part, governments at the World Food Summit in 1996 adopted the Rome Declaration and the Plan of Action, which included three goals under Objective 7.4:

The Plan of Action also reiterates the importance of the UN Charter and its guiding principles of state sovereignty and nonintervention when addressing legal obligations to prepare for, prevent, and respond to food emergencies.

Deliberate starvation of civilians already is prohibited under the Rome Statue of the International Criminal Court (ICC). The Rome Statute, which entered into force in 2002 for state parties, criminalizes deliberate famine acts by states and state-like actors under three of the four types of crimes within its jurisdiction: the crime of genocide, crimes against humanity, and war crimes. Famine is not a chargeable crime under the fourth crime, the crime of aggression, because the state parties intentionally left the fourth crime undefined due to lack of consensus and with the intent of revisiting the definition of the crime through amendment after the establishment of the court.

Despite these legal protections, prosecutions of deliberate famine acts under international law remains uncommon and difficult to prove. Further, leaders contemplating using food as a weapon can take solace in the fact that international criminal courts and tribunals tend not to prosecute for deaths caused directly or indirectly by such actions. Generally, international bodies focus on physical violence and its consequences. Moreover, the crimes under the Rome Statute require a showing of the requisite prohibited act, the actus reus, and the mental element, the mens rea. Notably, deliberate starvation and intentional disruption of civilians’ food security can fall within the scope of international criminal culpability but proving the mental intent is difficult due to evidentiary requirements and the ability of defendants to assert plausible intervening causes.

Thus, consistent with the goals of enhancing binding legal obligations for food security under international law, legal scholars, such as Marcus and Butler, have proposed amending the Rome Statute or developing a new convention to explicitly define famine crimes.

Four Proposals to Amend Under the Rome Statute
Here, I focus solely on the Rome Statute and critically examine their proposals in the context of four proposals under the Rome Statute and one proposal under complementarity:

I examine these with respect to the advantages, disadvantages, legal efficacy, and political ramifications, including the impacts of modifications to the criminalization of famine under the Rome Statute on the principle of complementarity.

Article 5 of the Rome Statute grants jurisdiction for four crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. The creation of a new, top-level crime would add “Famine” as Article 5(e).

Pro:
Marcus argues that an amendment to the Rome Statute to define explicitly “famine crimes” as a new top-level crime under Article 5 is necessary for three major reasons. First, he points to the absence of prosecutions for famine-related crimes under international criminal law as evidence of the unwillingness to hold individuals accountable for these types of crimes. A top-level crime would create create political visibility of the crime. Second, he argues for a top-level crime for famine as a means of removing the normative categorical legal distinctions among Article 5 crimes, such as distinctions between peacetime and wartime or the requirement of targeting specific populations for the crime of genocide. Third, he argues that explicit codification of “famine” is politically needed to debunk the myth that famines are naturally occurring phenomenon. Thus, Marcus argues for a top-level crime for famine to provide legal clarity, to eradicate the differences between humanitarian law and human rights, and to remove the special requirements for genocide.

An explicit fifth top-level crime, “famine crimes,” would raise the political profile of the crime and provide greater specificity for media headlines.

Con:
The reasons for an amendment are related mainly to attitudinal and political determinants for enforcement, prosecution, and publicity of famine crimes rather than a failure of the Rome Statute as a legal instrument to grant jurisdiction. Further, the justification to create famine as a top-level crime, however, falls short of demonstrating a convincing political or legal need for an amendment to create a special carve-out exception to the Rome Statute and could result in unintended consequences for the prosecution of existing crimes. Cases before the ad hoc international tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and public statements by the ICC Prosecutor demonstrate a political will to prosecute and the ability to prosecute under the mandates of international courts and tribunals.

For example, the high profile genocide conviction of Radislav Krstic before the ICTY in 2001 explicitly included a focus on the prohibited acts of deliberate “famine.” At the sentencing in the Trial Chamber, as also summarized in the ICTY press release on 2 August 2001, the Judge stated:

Radislav Krstic,
Photo linked from the ICTY

ICTY Landmark Case
Prosecutor
v.
Radislav Krstic
First Genocide Conviction Before the ICTY

Photo linked from the Serbian Government

The significance of this announcement and emphasis on famine are not to be overlooked for their political and legal importance because Krstic represented a landmark decision as the first genocide conviction before the ICTY. The ICTY in Krnojelac also convicted a defendant for deliberate famine acts as related to “living conditions” under crimes of war and crimes against humanity. There, the Prosecutor relied on evidence of “starvation,” with some detainees suffering “considerable weight loss ranging from twenty to forty kilograms.” The Tribunal also has indicted multiple defendants on the basis of providing inadequate food in detention and refugee camps. In Meakic, the Prosecutor indicted five defendants based, in part, on food deprivation of civilians. Similarly, in Sikirica, the Prosecutor relied, in part, on evidence of “starvation” rations in detention camps to indict the defendant for genocide, crimes against humanity, and violations of laws of war.

The ICTR similarly considered cases involving food security. In Seromba, the ICTR examined whether the defendant’s prohibition of refugees from getting food at a banana plantation was sufficient to constitute the prohibited genocidal act of “causing serious bodily harm” and thus to warrant conviction for the crime of genocide. The ICTR Appeals Chamber ultimately reversed the lower court’s holding of genocide due to a lack of evidence and admonished the prosecutor for asserting solely a “physical weakening” by the refugees without any additional evidentiary support, such as whether bananas were the only food source or to what extent the refugees’ food intake was limited. See Case No. ICTR-2001-66-A, Appeals Judgment, 48 (ICTR Mar. 12, 2008). Thus, the absence of successful prosecutions by the ICTR is not due to the absence of political will to prosecute non-violent acts of deliberate food shortages, including famines.

The case law of the ICTY and the ICTR are significant because the International Criminal Court may look to these cases as persuasive authority in interpreting its own statute and as it moves forward with prosecuting cases.

The political will argument is undermined by the ICC’s assessment of the crimes in the Democratic Republic of Congo and the Sudan, both of which implicate widespread “starvation” arising from direct and indirect criminal acts upon civilian populations and their food supplies. For example, in his opening remarks on Darfur on 27 February 2007, the ICC Prosecutor accused two defendants with 51 counts of alleged crimes against humanity and war crimes based, in part, on evidence that “[t]housands of civilians died in Darfur either from direct violence or as a result of disease, starvation and the conditions of life imposed by the crimes.” Further, in the Sixth Report of the Prosecutor of the International Criminal Court on 12 May 2007, the ICC Prosecutor refuted the Sudanese government’s assertion of food adequacy in refugee camps.

Also, the argument to remove the legal distinction between crimes against humanity and war crimes solely for famine crimes based on the rationale that there is no functional distinction between famine during wartime and peacetime is unconvincing. Such an argument might be more convincing in light of proposals to harmonize humanitarian law and human rights across all crimes on moral grounds and as a means to provide clarity that one set of rules applies all the time. Yet, to create a special exception for famine crimes, with its own set of rules for criminal culpability and duplicating some of the existing crimes, likely will add confusion rather than provide legal clarity to guide the conduct of leaders, judges, and prosecutors.

The argument that famine should be a top-level crime to debunk the myth that famines are naturally occurring essentially argues for legal codification in order to achieve the public relations goal of increasing international political pressure to adjudicate “famine crimes.” Thus, one question would be whether it is necessary to create a new category of crimes to accomplish a public relations issue. Would re-branding of famine crimes bring the same political-will effect as the codification of a new type of crime, such as was the case with genocide? Moreover, if debunking the myth of famine as naturally occurring is the ultimate goal, is re-branding necessary when political rhetoric already is identifying the causation of human agency behind widespread famines.

For example, William A. Schabas in his assessment of Darfur concludes, in part, that the conditions of life “have led to the deaths of thousands from disease and starvation,” and states that the commission of these grave crimes, among other crimes, warrants a finding by the ICC Prosecutor to bring a case under genocide or crimes against humanity. See William Schabas, The Nuremberg Trials: A Reappraisal and Their Legacy: Genocide, Crimes Against Humanity, and Darfur: The Commission of Inquiry’s Findings on Genocide, 27 CARDOZO L. REV. 1703 (2005). Admittedly, Schabas does not refer to famine nor would the media likely focus on the use of the word in the absence of concerted political spin and outreach by the ICC. To that end, the proposal of an amendment would result in greater public awareness of intentional “famine” by name rather than awareness merely by the legal elite who understand the constructs of international criminal law.

Marcus argues that the mental element, or mens rea, of the Rome Statute, creates too high a barrier and a vague standard for famine crimes and thus enables the international community to avoid accusing and prosecuting government officials of recklessly or negligently causing famine and starvation in their civilian populations. He proposes to impose a mens rea standard of “recklessness” or “negligence” to lower the burden of proof for famine crimes. In doing so, Marcus seeks to provide criminal prosecution for acts of omission and inaction, with an emphasize on criminalizing “misguided agro-economic policies that are recklessly maintained” to the peril of domestic populations during peacetime.

Pro:
The mental element poses a substantial barrier to prosecution of famine crimes, particularly when the defendant can argue many intervening causations, such as drought or logistical problems. Such defenses currently permit a leader to act with negligent or reckless disregard to the welfare of civilians without legal consequence under the Rome Statute. Thus, a lowered mens rea standard would make criminal prosecution easier and may lead to greater deterrence.

Con:
In arguing his point, Marcus relies on ICTY and ICTR case law and a questionable premise that political and economic decisions made in good faith should confer criminal culpability based on consequences. Unlike the authorizing mandates for the ICTY and the ICTR, the Rome Statute contains a general definition of the mental states required for conviction. This general provision applies to all crimes unless otherwise provided in the statutory definition of each crime and the accompanying Elements of Crimes.

ICC Article 30 requires the crimes to be committed with “intent and knowledge.” For crimes with consequences, such as those proposed by Marcus, Article 30(2) imposes liability when the person acts “to cause that consequence or is aware that it will occur in the ordinary course of events.” Given that the language of the statute was developed and will be interpreted by both common law and civil experts, the wording of Article 30 leaves unclear whether the mental element, or mens rea, includes common law “recklessness,” as advocated by Marcus. The case law of the ICTY and ICTR suggests an interpretation in favor of recklessness, but the ICC is not bound by that case law and some commentators argue that the drafters of the Rome Statute intentionally created a more stringent standard to preclude “recklessness.”

While this ambiguity could resolve in Marcus’ favor to allow recklessness and thus make his argument for an amendment moot, a more fundamental question is whether international criminal culpability should be conferred for reckless or negligent political and economic decisions. To do so might increase the incentive for external actors to manipulate the choices of leaders, particularly those with weaker economies, in order to impose post facto criminal liability for unintended consequences. If the goal of criminal prosecution is deterrence, does criminalization of poor decision making adequately alter behavior and, if so, to desirable outcomes? Would a lowered criminal standard influence leaders to abdicate responsibility to foreign leaders or international entities in order to avoid the potential for criminal responsibility and thereby defeat the traditional notion and expectation that a state has the primary responsibility for guaranteeing the well-being of its citizens? Further, a special carve-out exemption for famine crimes, if adopted, would create dangerous precedent contrary to the state parties’ efforts to create a general provision for mens rea across the crimes.

In summary, amending the Rome Statute to create a new crime dedicated to “famine crimes” likely will achieve the political and public relations goals of increasing awareness of the deliberate famines. The creation of famine crimes, however, could create a dangerous carve-out exception under the Rome Statute, while allowing a lower evidentiary standard not afforded to any other international crime. Moreover, it could result in the unintended consequence of increasing the difficulty of prosecuting existing crimes due to a reliance on the same facts across multiple charges and the general prohibition on prosecuting individuals twice for the same crime. As such, prosecutorial discretion may continue to disfavor bringing charges under the new crime in favor of more settled case law with greater legal certainty. Moreover, because, as Marcus recognizes, famine crimes are within the jurisdiction of the ICC, any proposed amendment would need to be very specific and likely would face significant opposition during the practical phases of reaching agreement on what constitutes a famine crime, whether famine crimes should be a new crime or a prohibited act with existing crimes, and what standard of mens rea should apply.

The Statute’s supplementary text, known as the Elements of Crimes, provides additional guidance and specificity to facilitate the interpretation and application of Article 5 crimes by the Court. See Elements of Crimes, Rome Statute, ICC-ASP/1/3 pt. II-B (Sept. 9, 2002). There are 16 types of crimes within the top-level “crimes against humanity.” Each crimes requires, at minimum, the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. The crime against humanity of extermination under 7(1)(b) imposes criminal liability for killing people by “inflicting conditions of life,” which includes direct and indirect methods.

Pro:
Adding a crime titled, “crime against humanity of famine,” would create better political and legal visibility of the prohibited act of deliberate starvation of civilians. The state parties would need to change the Elements of Crimes rather than the Rome Statute.

Con:
The existing legal structure already grants jurisdiction and the necessary legal tools for prosecutors to bring and defend charges against the accused. For example, the ICTY already convicted a defendant for deliberate famine acts as related to under war crimes and crimes against humanity. In Prosecutor v. Krnojelac, the Tribunal found the defendant guilty based on evidence of “starvation,” with some detainees suffering “considerable weight loss ranging from twenty to forty kilograms.” See Case No. IT-97-25-T, Trial Chamber, Judgment (ICTY Mar. 15, 2002). Further, the ICTR has indicted multiple defendants on the basis of providing inadequate food in detention and refugee camps. For example, in Prosecutor v. Meakic, the Tribunal five defendants were indicted based, in part, on food deprivation of civilians. See Case No. IT-03-65-PT, Indictment (ICTY June 2, 2003). In another case, Prosecutor v. Sikirica, the defendant was indicted for genocide, crimes against humanity, and violations of laws of war. The ICTR Prosecutor cited “starvation” rations in detention camps as evidence. See Case No. ICTY 95-8 (ICTY Nov. 13, 2001).

An alternative proposal to the creation of a new Article 5 crime is the inclusion of “famine crimes” under the crime of aggression. The state parties also can consider other amendments at the Review Conference pursuant to Article 123, stating that the Review Conference shall consider amendments. Notably, the Rome Conference in 1998 recommended consideration of terrorism and drug crimes for future amendments.

Pro:
The proposal has two strategic advantages. First, state parties already are expected to consider an amendment to define the crime of aggression at the 2009 Review Conference. Second, all three of the four crimes under Article 5 grant jurisdiction over some aspect of famine crimes, ranging from “killing” and “extermination” through starvation, “causing bodily harm” through food deprivation, deliberately inflicting on the group the “conditions of life” calculated to bring about its destruction by failing to provide adequate food, and “intentionally using starvation of civilians as a method of warfare.” Thus, inclusion of “famine” under the crime of aggression would support universal coverage under all crimes. Possible prohibited acts of aggression could be the inducement of famine through food blockades or attacks on or interference with humanitarian convoys, stocks, and distribution centers. Further, if the state parties broadly define the crime of aggression to include domestic acts against civilians during peacetime, famine crimes as a distinct prohibited act within the crime of aggression becomes more viable, but state parties likely would resist the broadened scope because of threats to sovereignty, the potential for political prosecutorial abuses, and the overlap with crimes against humanity.

Con:
The international community is not in agreement what constitutes “aggression” and adding famine within its scope may delay the development of consensus.

Because famine crimes are covered already by the Rome Statute, an alternate strategy to enhance the ability for domestic prosecutions of famine crimes would be for the international community to encourage states to implement legislation for all crimes under the Rome Statute consistent with an overall benefit of complementarity. States would benefit in their overall ability to retain jurisdiction, if desired, over crimes subject to ICC jurisdiction. Further, additional clarification on famine-specific crimes domestically could be incorporated through projects aimed at providing model criminal codes for common law and civil law jurisdictions. While not fully addressing the issues of domestic enforcement, increased domestic legal mechanisms pursuant to the Rome Statute can help foster broader political awareness in a state’s responsibilities under humanitarian law, human rights law, and international criminal law.

Pro:
Recent incidents with increased banditry attacks on humanitarian food convoys in the Sudan spotlighted the lack of legal mechanisms to prosecute the crimes domestically and the complexity of prosecuting the crimes at the international level. Increased domestic laws prohibiting and criminalizing famine crimes also would support the principle of complementarity, which allows states to retain jurisdiction if they genuinely investigate and prosecute the famine crimes in accordance with implementing legislation for the crimes of the Rome Statute. One possible means to encourage states to enact implementing legislation would be through a UN Security Council resolution. Precedent can be found in resolutions 1373 and 1540, which invoke the Security Council’s compulsory powers under Chapter VII to condemn acts of terrorism. These resolutions represented a new exercise of the Council’s power under Chapter VII for two reasons: they (1) declared a general concern, not a specific situation or dispute, as constituting a threat to international peace and security, and (2) imposed legally binding obligations outside multilateral treaty-making processes on all UN member states to enact domestic legislation related to counterterrorism and counterproliferation. Similarly, the Security Council could condemn deliberate famines and impose legally binding obligations on states to enact domestic criminal legislation to prohibit these types of crimes, preferably as consistent with the Rome Statute.

Con:
The disadvantages of mandating domestic legislation include an absence of political will by the international community and reluctance to impinge on sovereign states. Further, because the perpetrators of famine crimes likely are the political leaders, there are pragmatic concerns that legislation will be enacted but not enforced. If so, the proliferation of law without enforcement may lead to the gradual erosion of respect in the rule of law in society.

Because famine crimes are covered already by the Rome Statute, an alternate strategy to enhance the ability for domestic prosecutions of famine crimes would be for the international community to encourage states to implement legislation for all crimes under the Rome Statute consistent with an overall benefit of complementarity. States would benefit in their overall ability to retain jurisdiction, if desired, over crimes subject to ICC jurisdiction. Further, additional clarification on famine-specific crimes domestically could be incorporated through projects aimed at providing model criminal codes for common law and civil law jurisdictions. While not fully addressing the issues of domestic enforcement, increased domestic legal mechanisms pursuant to the Rome Statute can help foster broader political awareness in a state’s responsibilities under humanitarian law, human rights law, and international criminal law.

• See additional information on InsideJustice.com about the U.N. International Criminal Courts and Tribunals

International Criminal Court

• International Criminal Court (ICC)
• Rome Statute of the ICC
• Elements of Crimes, Rome Statute
• List of the State Parties to the ICC
• Assembly of States Parties
• Cases before the ICC
• Coalition for the International Criminal Court (CICC) (a network of NGOs)

International Criminal Tribunals

• Ad Hoc International Criminal Court for the Former Yugoslavia (ICTY)
• Ad Hoc International Criminal Court for Rwanda (ICTR)
• Special Court for Sierra Leone
• Special Tribunal for Cambodia: Extraordinary Chambers in the Courts of Cambodia

Articles

• David Marcus, Famine Crimes in International Law, 97 AM. J. INT’L L. 245 (2003).
• Daniel Butler, Enforced Starvation: Exploring Individual Criminal Responsibility for State-Induced Famines, HUM. RTS. L. COMMENT., Oct. 2007.

Books

• Alex de Waal, Famine Crimes: Politics & the Disaster Relief Industry in Africa (1998)

UN Agencies

• UN Office for the Coordination of Humanitarian Affairs
• U.N. World Food Program
• UNICEF

Famine and Food Relief Organizations – Accepting Private Donations

• U.N. World Food Program (WFP)
• Friends of WFP: World Hunger Relief 2008
• UNICEF
• International Committee of the Red Cross (ICRC)
• International Red Cross and Red Crescent Movement