Overview Famine can be ended; indeed, theworld cameclose to doing so. Between2000 and 2011, there were no famines. Today, several famines threatenvariousstatesandregions,allduetotheconductofarmedconflict.

Famineisproperlyunderstoodasanatrocity:theresultofdistinctandoftencriminallyintentionalpoliciesthattargetdiscretepopulationsinthepursuitofmilitaryorpoliticalgoals.Famineswillnolongeroccurwhentheyaresomorally reprehensible that causing them, or allowing them to happen, isunthinkable.Inordertoachievethisgoal,weneedasharperapplicationofinternationallaw.

Although starvation has appeared in a handful of prosecutions ininternationalcriminallawoverthemodernera,therehavebeenadearthofprosecutionsrestingsquarelyonthecrimeofstarvation.

A principal challenge is ensuring that the law distinguishes betweenlegitimate military actions such as sieges, the multiple and intersectingcausesoffamine,andthedeliberatestarvationofcivilians.

Theclearestandmostprogressive lawonthebooks isArticle8(2)(b)(xxv)oftheRomeStatute,however itdoesnotapplytonon-internationalarmedconflict,thecontextforalloftoday’sfaminesituations.

Severalother legaloptionsexist forprosecution,rangingfromwarcrimes,to crimes against humanity (‘CAH’), to genocide, whichmight be used toaddress thedeliberate starvationofcivilians.Doing sowill require carefulattentiontotheelementsoftheoffenceandthenecessaryevidencerequiredtoestablishthoseelementsandtherequiredintent.

Onlywhen existing or future legalmechanismsdevelop or create a betterunderstandingofthesescenarios,ormoregenerallywhenstarvationentersthe legalzeitgeistinthewaythatsexualviolenceandgender-basedcrimes(mercifully)nowhave,willprosecutionsproduceamoresingulardefinitionofthecrimeofstarvation.

International advisory firm,GlobalRights Compliance, specialises inservices associated with bringingaccountability for violations ofinternationalhumanitarianlawandinternational human rights law.Drawing on decades of experiencein conflict affected areas andtransitional justice environments,GRC provides bespoke technicalexpertise and support to State andnon-State bodies involved in allstages of prosecution and otherjusticemechanisms.

TheWorld Peace Foundation, anoperating foundation affiliatedsolely with The Fletcher School,provides intellectual leadership onissuesofpeace,justiceandsecurity.Itbelievesthat innovative researchand teaching are critical to thechallengesofmaking peacearoundthe world, and should go hand-in-hand with advocacy and practicalengagement with tough issues. Itregularlyconvenesexpertseminarsto address today’s most pressingissues.

Can we prosecute starvation? Briefing Paper May 1, 2018

Canweprosecutestarvation?

2

Famine Today Famineisanage-oldscourgethatalmostdisappearedinour lifetime. Between 2000 and 2011 there were nofamines and deaths in humanitarian emergencies havebeen much reduced. This progress is partly due togreater expertise in predicting, preventing, mitigatingand responding to crises before they reach the level offamine. International humanitarian law is stronger andhumanitarian lesson-learning is more robust. Over ageneration,thehumanitarianagendawasascendant.

Yet famines have returned. In 2017, theUnitedNationsidentified four situations of acute food insecurity thatthreatenedfamineorbreachedthatthreshold—innorth-easternNigeria,Somalia,SouthSudanandYemen.Yemenisthelargestimpendingdisasterandpossiblythefaminethat will define this era. Cases of deliberate starvationhaveoccurred inSyriaandnear-famineconditionshaveoccurredintheDemocraticRepublicofCongo.

Above all, political choices have driven famine’s re-emergence in this century. Some famines derive fromintentionalpolitical andmilitarydecisions,whileothersareallowedtodevelopbecausethemostpowerfulactorshave other priorities, such as security, that overrule aneffectiveresponse.

Everyfaminetoday isoccurring inthecontextofarmedconflict. Indeed, all result from military actions andexclusionary, authoritarian politics conducted withoutregard to the wellbeing or even the survival of people.Violations of international humanitarian law includingblockading ports, attacks on health facilities, violenceagainst humanitarianworkers, and obstruction of reliefaidareallcarriedoutwithasenseofrenewedimpunity.AsstatedbySigridKaag,MinisterforForeignTradeandDevelopment Cooperation of the Kingdom of theNetherlands,duringadiscussionof famineandextremehunger in theUnitedNationsSecurityCouncilonMarch23, 2018: “Flouting the lawofwarnot only turns thesenorms into hollow phrases; it erodes the rules-basedinternationalorderitself”(S/PV.8213;6).Faminesstrikewhenaccountabilityfails.

Addressing this demands a new infusion of resourcesandenergy,toensurethatthereissufficientpoliticalwillto end the political and military practices that causefamine. At a timewhenmore authoritarian,militaristic,xenophobic and cynically self-interested politics are onthe rise, we must defend the humanitarian imperativeandtherightoflifeanddignity.

Ourultimategoalistorendermassstarvationsomorallytoxic,thatitisuniversallypubliclyvilified.Becausemassstarvation demonstratively can be ended, it cannot betolerated.Weaimtomakemassstarvationunthinkable,such that leaders in a position to inflict it or fail toprevent it will unhesitatingly ensure that it does notoccur,andthepublicwilldemandthisofthem.

A fundamental contribution to achieving this goal issharpening the conceptual and practical applications ofinternational law. This raises several questions: Is thelaw as it exists sufficient to prosecute individuals forcrimes of starvation committed by States? Or are theregapsinthelawasitstandstoday,orsuchconstraintsonasuccessfulprosecution(suchasobtainingthenecessaryevidence) that makes it impossible to pursue a casesuccessfully?

International Law and Mass Starvation The question concerning whether the current law issufficient to prosecute individuals for crimes ofstarvation cannot be consideredwithout understandingthewayinwhichlawisdeveloped;unlessanduntilthereis a culture of focused prosecutions for starvation, thisquestion and its answer,will remain in the abstract. Asthe last 25 years of law making at the internationalcriminaltribunalshaveshown,oncetherelevantconductfor a serious international violation moves beyond theclassroomand into the courtroom, the relevant lawcanbe identified, clarified and developed. As with theprosecutionofsexualviolenceandgender-basedcrimes,thisprocessiswhatbringsclaritytothelawandensuresitisausefulinstrumentforaccountability.

Althoughstarvationhasappeared ina fewprosecutionsininternationalcriminallaw(‘ICL’)overthemodernera,therehasbeenadearthofprosecutionsrestingsquarelyon thecrimeof starvation.Of theapproximate20casesinwhichstarvationhasfeatured,onlythreehavepleadedit as a distinct crime. Generally, it has been included ascontext in other CAH often as part of misconduct indetentionsituations.

Despite the lack of prosecutions, there is no reason tobelieve that the crime of starvation cannot follow atrajectorysimilartootherinternationaloffences,suchassexual violence and gender-based crimes. Before the2001 judgment inthecaseofTheProsecutorvJean-PaulAkayesu at the International Criminal Tribunal for

Canweprosecutestarvation?

3

Rwanda, rapewasnotrecognisedasa formofgenocideor a CAH. The Court’s finding served as the departurepointforseveralinternationalprosecutionsofsexualandgenderbasedcrimesandafurtherelucidationofthelaw.Whatwashistoricallyobservedasanaturalconsequenceof war, an unhealthy belief that ‘boys will be boys’,became universally viewed as abhorrent behaviourdemanding prosecution and lengthy prison sentences.What is now required, are prosecutions for starvationoffences leading to robust legal findings of individualcriminal responsibility, the recognition and removal ofaccountability gaps, and the comprehensive labelling ofthecrimeasrepugnanttoall.

The internationalcommunity lacksevena taxonomyfortheactsthatconstitutestarvation.Notwithstandingthis,there is still an arrayof legal options ranging fromwarcrimes, toCAH,togenocide,availabletoaprosecutortohold individuals toaccount for thedeliberatestarvationof civilians. However, as an examination of the mostrelevantlawshows,thereareanumberofproblemsthat,in part, exist because there is little detailed legalconsiderationof themisconduct that liesat theheartofthe crime of starvation. These will be discussed brieflybelow.

Blockades, Sieges and Starvation under IHL As recently as World War II, it was still lawful for abelligerenttolaysiegeanddrivefleeingciviliansbacktoareascontrolledbytheenemyasatactictoputpressureon available food and other resources in furtherance ofmilitarysuccess.Indeed,intheso-calledHighCommandCase, aUSpost-warmilitary commissionacquittedFieldMarshallWilhelmvonLeebforhisroleinthebrutalsiegeofLeningrad(September1941–January27,1944)onthisrationale. Even then, the judges expressed discomfortwiththestateofthelawasnotedintheiropinion:

Thejudgesconcluded:

Fortunately,thelawhasprogressedandtheseattacksona civilianpopulation areno longerpermitted.However,thedistinctionbetween legitimatesiegesandstarvationof the opposing army on the one hand, and starvationand civilian protection on the other, has not beenadequately explored in the practical setting ofcourtroomsandremainspoorlyunderstoodanddefined.Asthe lawdevelops,oneoftheprinciplechallengeswillbe toensure that the law isable todistinguishbetweenlegitimate (IHL compliant) military offensives such assieges, the multiple and intersecting causes of famine,andthedeliberatestarvationofcivilians.Herein liesthefundamental challenge; to ensure that the law on theseissuesiscertain,specificanddeclaratory.

The Rome Statute and the International Criminal Court The clearest andmost progressive law on the books isArticle 8(2)(b)(xxv) of the Rome Statute. This Articlecriminalises:

There are four necessary elements to establish theoffence:

Acts

(i) Theconducttookplaceinthecontextofand was associated with aninternationalarmedconflict;

(ii) The perpetrator was aware of factualcircumstances that established theexistenceofanarmedconflict;

“A belligerent commandermay lawfully laysiegetoaplacecontrolledbytheenemyandendeavourby a process of isolation to cause its surrender.The propriety of attempting to reduce it bystarvationisnotquestioned.Hencethecuttingoffevery source of sustenance from without isdeemedlegitimate.”

“Wemightwish the lawwereotherwise, butwemustadministeritaswefindit.”

“Intentionallyusingstarvationofciviliansasamethodofwarfarebydeprivingthemofobjectsindispensabletotheirsurvival,includingwillfullyimpedingreliefsuppliesasprovidedforundertheGenevaConventions.”

Canweprosecutestarvation?

4

(iii) The perpetrator deprived civilians ofobjects indispensable to their survival;and

Mental Element

(iv) The perpetrator intended to starve theciviliansasamethodofwarfare.

The offence described in 8(2)(b)(xxv) is astraightforward articulation of themost egregious formof starvation, with the relevant intent at the core of astarvation offence. Moreover, it appears to address theessential civilian protection problem: it is expansiveenough to encompass a situation where starvation isused to gain a military advantage, such as usingstarvationtoachieveaspeediersurrenderofabesiegedtownorvillage.

The requirement that the deprivation of indispensableitemsmeantasamethodofwarfare,wasincorporatedtoinclude the IHL concept of starvation under Article 54Additional Protocol I of the Geneva Conventions.However,giventhisrequirementandtheoverallfocusonintent in the Article, difficulties may arise in practiceconcerninghowtoassesstheliabilityofawarringpartythatfailstorespecttheprinciplesofproportionality,orisotherwise reckless. Given the need to focus on intent(and not purpose) this may not prove to be aninsuperable problem in terms of adjudication oraccountability. Putting these questions aside, what isclear is that that Article 8(2)(b)(xxv) does not allowprosecutions for inadvertent consequences, such associetal mismanagement or otherwise failures togenerally live up to internationally promoted standardsofgoodgovernance.

Notwithstanding the above, Article 8(2)(b)(xxv) is acrime with a broad reach that can address a range ofmisconduct. However, the crime has no applicabilityoutsideasufficientlinktoanarmedconflictanditisnotapplicableinanon-internationalarmedconflict(‘NIAC’).Given that all of the countries’ currently enduringconflict-related food insecurity,starvation,orpocketsoffamine (South Sudan, Yemen, Nigeria and Somalia), areclassified as a NIAC –with the exception of Syria--thoseperpetrating the deliberate starvation of civilians inthese States could not presently be prosecuted at theInternational Criminal Court (‘ICC’). This creates asignificantaccountabilitydeficitthatcannotbeexplainedbyreferenceto internationalcustomaryorconventional

law, and undermines the ICC’s mandate of endingimpunity.Asforthe latter, there isnoprincipledreasonfornotamendingtheRomeStatutetoincludestarvationasadistinctwarcrimeprosecutableinNIACs.

Nevertheless, a prosecutor faced with evidence of therelevant misconduct is not disarmed, even ifhandicapped by the lacunae in the Rome Statute. For aNIAC,aprosecutorwillneedtopicktheirwaythroughanarray of other war crimes or attempt to consider theconduct as a separate CAH or as genocide. The use ofthese ‘alternative’ crimes is not without consequences:the more the conduct is separated from the coreelements of the crime of starvation, the more theprosecutionmayfailtocapturetheessenceofthecrime.The declaratory value of criminal prosecutions shouldnotbedisregarded.Itisimportantnottolosesightofthesingular nature of the crime of starvation that rests onthe intentional deprivation of objects indispensable forsurvival. Inotherwords,whilst thesealternativecrimesmay be useful, especially in the face of problems in theapplicabilityofthemostappropriatelaw,theycomewiththeir own thresholds and connotations that riskobscuring the uniqueness of starvation as a distinctcrime.

Investigative and Evidential Requirements Aswithotherspecificintentcrimes,theinvestigationandprosecution of the crime of starvation under Article8(2)(b)(xxv) must confront specific evidentialthresholds.Giventhemulti-causalnatureofstarvation,itis essential that those investigating and collecting therelevant information understand the elements of theoffence and the type of information that may beadmissible in any prosecution. The evidence collectionstage from cause (e.g. an unlawful blockade) to effect(e.g.malnutritionleadingtodiseaseepidemicsanddeathsuch as cholera in Yemen)must be clearly tracked andunderstood if the intent of the contributory actors is tobeaccuratelyassessed.

At the investigative stage, it would be essential toexamine and determine the following non-exhaustivefactors; (i) the conflict classification; (ii) the causes ofdeprivation;(iii)relevantissuesconcerningtheprincipleof distinction, including whether those affected werecivilians [which may be difficult to discern in internalconflicts where civilians are often engaged in the

Canweprosecutestarvation?

5

conflict]; (iv) that the objects indispensable to survivalwere not objects solely for the use of opponent armedforces i.e. food inside a military base is likely to bedeemed exclusively for the use of combatants; and, (iv)whether the State which attacked/destroyed/removedorrendereduselesstheobjects,wasdoingsoinitsowncontrolledterritoryasatacticagainst invaders– i.e. themilitaryobjectivequestionandtheconcentricquestionsofproportionality.

At a minimum, there are three categories of evidencenecessary for a prosecutor to be aware of whenmounting a case for starvation. These are brieflydiscussedbelow.

First, evidence demonstrating the targeting ofindispensable objects. Indispensable objects areinterpreted broadly and may include a range of itemsincluding: food, farmland, crops, livestock, drinkingwater installations, supplies or irrigation works,medicaments, basic shelter, electricity power, blanketsand clothes. Evidence of attacks or destruction of theseitems, including photographs or videosmay be utilisedby the prosecution. The targeting of food-producingareas such as agricultural fields, farms, livestock,foodstuff as well as wells or other water installationsmust be documented through oral and documentaryevidence. Photographs or other evidence that showhumanitarianconvoyscontainingsuppliesforthecivilianpopulationbeingattackedordivertedmayalsobeusedtoproveessentialelementsof theoffence.Forexample,the combination of satellite and ground imagery andinformationprovidedbyStatesenabledaclearpicturetobeformedofaerialattacksofaSyrianArabRedCrescentconvoy containing humanitarian supplies near AleppocityinSeptember2016.

Second, even though theoffencedoesnot requireproofof outcome, expert or authoritative opinion evidencingthe suffering and the consequences of the deprivation,remains an essential piece of the starvation puzzle.Whilst there is no material element requiring proof ofstarvation(either in termsofdeathsornatureandtypeof suffering), a prosecutor must investigate and collectthiskindofevidencetoensurethattherequisitegravityof the conduct may be shown and the relevant intentestablished (either directly, or indirectly through thevariousstrandsofcircumstantialevidence).

The requirement that the deprived items areindispensablepresupposesthatanyprosecutorwillneedtoengageindemonstratingthenatureofthoseitemsandhow theywereessential to survivalorwellbeing.There

willbeavarietyofexpertevidencetoconsider,muchofit from humanitarian organisations working on theground concerning on-going or previous relief efforts.Theevidencewillneedtodemonstratespecificallyandindetailtheprincipalconsequencesofthedeprivation.Theheadlining statistics and observations from thehumanitarianworldwillbe relevantandprobative.Thefact that the humanitarian community in Yemen byNovember 2017 documented that over 2.2 millionchildren in Yemen were malnourished and of those385,000 children were suffering from severemalnutrition requiring therapeutic treatment will nodoubt prove important for understanding the nature,severity and scope of the starvation in that conflict.However, this type of evidence will requiresubstantiation through more specific evidence thatreflects the day to day life in besieged areas, includingexpert analysis on in-country trends of malnutrition,hospital records detailing the numbers of patientssuffering from malnourishment or other forms ofdeprivation, and other records that show the dailystruggleforsurvival.

Third,andperhapsthemostchallenging,isthecollectionof evidence that seeks to explain and detail the linksbetween theoffendingsiegeorblockadepolicy,and theconsequential deprivation of items. This evidence willlikelyneed to confront amultiplicityofpotential causalrelationships that might explain the absence ordestruction of the items and the deprivation. Asforeshadowed by the challenges of distinguishingbetween legitimate (IHL compliant) military offensives,the multiple causes of famine, and the deliberatestarvationofcivilians,thisevidencewillneedtobeclearandprecise. Atthecenterofthisinvestigation,willbeafocus on how warring parties are (or are not)responsibleforadverseeffectsontrade,foodproductionand any impediments to the delivery of supplies tocivilians, and the intention underlying the adverseeffects.

Plainly, factssuchas those issued inDecember2017bythe UN Humanitarian Coordinator in Yemen that “thecontinuingblockadeofports is limiting suppliesof fuel,foodandmedicines;dramaticallyincreasingthenumberof vulnerable people who need help”will be importantbut insufficient. Instead, the evidence will requirespecifics which explore alternative explanations, thenature, scope and aim of the relevant blockade, themilitarytargetsandaccruedadvantages,theattemptstoalleviate civilian suffering and a wide range of conductthat goes to the principle of proportionality and

Canweprosecutestarvation?

6

distinction. This range of evidence will be essential toestablishing the requisite knowledge and intent, whichshouldlaythefoundationforthesuccessfulidentificationofperpetratorsandprosecutions.

The threecategoriesofevidenceoutlinedabovearenotintended to be exhaustive. Much will depend on thecircumstancesandtherelevantcontext.Thefundamentalchallenge will be to show through a broad swathe ofcircumstantial evidence, that an irresistible inferencemay be drawn that the named suspects intended thecrimeofstarvation.

Unfortunately, express statements by perpetrators suchas those by the Ethiopian Foreign Minister during theEthiopian famine of 1983-1985 (that foodwas amajorelementintheirmilitarystrategy)orthatbyanofficialofthe Nigerian government during the 1967-1970 Biafrawar of secession (that starving civilians is a legitimatemethodofwar)willberare. Instead, intentwillneedtobe pieced together from an array of expert and factualevidence that rises to the challenge of establishing themens rea of starvation as a war crime through directevidenceof intentionaldeprivation,or indirectevidenceofafailuretoacttoalleviatesufferingthatmovesbeyondclaims of unintended consequences and allows therequisiteinferenceofintenttobedrawn.

DisentanglingthepermissiblefromtheimpermissibleinIHL and evidencing the requisite specific intent underArticle 8(2)(b)(xxv) will pose considerable and novelinvestigative challenges. However, to an extent, thesechallenges in one formor another have been faced andmet before in the pursuit of new (and much needed)formsofaccountability.

Conclusion: The challenge ahead

In itsprimaryuse, theverb ‘to starve’ is transitive: it issomething people do to one another, like torture ormurder.Massstarvationonaccountofnaturaladversityhas become vanishingly rare: today’s famines are allcausedbypoliticaldecision. Evengiven food insecurityand other pressures, like climate change and poverty,famineshouldnotexist.Thetechnicalmeanstopreventand mitigate mass starvation are well known andachievable. When famine appears, it is the result ofpoliticaldecisions.

This crime can be prosecuted. What is required in thecase of starvation (as with many under-prosecuted orneglected crimes) is the political will to pursue thosewho are acting criminally by starving civilians; a readyforumempoweredtoprosecute,skilledinvestigatorsandthe determination of prosecutors to close theaccountabilitygap.

It is only when existing or future legal mechanismsdevelop or create a better understanding of thesescenarios,ormoregenerallywhenstarvationentersthelegalzeitgeistinthewaythatsexualviolenceandgender-based crimes (mercifully) now have, will prosecutionsproduce a more singular definition of the crime ofstarvation.Onlyoncethereis legalprecedentonhowtoapplythelawtothefactsontheground,willwehavethetools to authoritatively understand the contours of theoffence, and in turn be able to ascertain whether theexisting law is fit for the purpose of successfulprosecutionsandaccountabilityforthesegravecrimes.