By Wayne Jordash QC and 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. Starvation is also being used as a weapon of war in Syria. We have also seen how food and humanitarian aid is being manipulated, obstructed and politicised in the Gaza Strip and in Venezuela.
Starvation Crimes – an umbrella term coined by Alex de Waal to encompass a range of (non-exhaustive) criminal conduct intended to deprive people of items necessary for sustaining human life – are at the heart of the problem. Every instance of famine or acute food insecurity today is at its core man-made and this criminal and reckless behaviour is responsible for widespread and systematic death, injury and suffering worldwide. As 2019 begins and the number of victims spirals into the millions, we must urgently address how we can strengthen our collective response to deter such conduct.
The current and collective 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. Yet recognition of the deliberate nature of famine, attribution of fault and accountability remains elusive. We 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 relevant law may be identified, clarified, codified and developed so that a belligerent warlord or a government supplying arms used to starve become fearful of its reach.
A significant barrier and indeed weakness of the crime of starvation under the Rome Statute of the International Criminal Court (‘ICC’) in its present form, is that it only applies in an international-armed conflict (‘IAC’). This excludes nearly all of the current conflicts, including Syria, Yemen and South Sudan enduring mass starvation.
Given the international customary law clarity around its criminalisation in both conflict designations, as recently reflected in UNSC 2417, it is more than ripe for amendment. In April 2018, Switzerland proposed an amendment to article 8 of the Rome Statute on the “Inclusion of starvation as a war crime in non-international armed conflicts (‘NIAC’) into the Rome Statute”. It has much to commend it.
Unfortunately, time was against the Swiss proposal and in October 2018, the amendment decision was postponed to the 18th Session of the ICC’s Assembly of State Parties in 2019, to allow for a thorough discussion by the Working Group. There was no principled basis for omitting to include it in the Rome Statute from the outset. Given the escalating criminality in NIACs, there is now, more than ever, an urgent need to correct this mistake.
Filling this accountability gap will strengthen enforcement worldwide and will provide a platform for further global action. Many European countries appear receptive to these developments, including the Netherlands, who not only unanimously pushed through UNSC 2417, but matched words with deeds and altered their domestic legislation ahead of UNSC 2417’s vote in May, to ensure that the crime of starvation may be prosecuted in both a NIAC and an IAC. At least eight other countries have already removed the arbitrary distinction that remains in the Rome Statute.
The ICC is a court of last resort. It is states that need to show leadership on the issue and ensure that their laws are fit for purpose and may be used to prosecute under universal jurisdiction principles and also to ensure accountability for their own citizens or corporations misbehaviour. The increasing use of universal jurisdiction across the globe, including Argentina’s recent commencement of its investigation into the role of Prince Mohammed Bin Salman in torture and war crimes in Yemen, shows that we should not assume the impunity of the powerful, especially where responsible states, civil society organizations and the public join hands to protect those in need.
Of course, starvation trials, whilst long overdue, are not a panacea. International and national justice is but one part of the journey. We must look more broadly at the full range of transitional justice tools, including truth, reparations, reform and guarantees of non-recurrence. However, we must first deal with the misconceptions surrounding starvation that (conveniently) lapse into inertia and fatalism, painting starvation as a force majeure, or due to climate change, poverty or even legitimate military action. None of these excuses stand up to scrutiny or begin to address the unforgivable pain and suffering visited upon the innocent.
Our collective determination should be to make mass starvation unthinkable. We must aim to increase the likelihood that global leaders in a position to inflict or fail to prevent mass starvation, act to avoid it. We need to work cooperatively to ensure that starvation is not viewed as an inevitable consequence of war and that those who intend it will be held up to public reproach and condemnation. For those leaders who refuse to alter course, they must pay the price. As 2019 begins we need to act now to ensure the millions of famine victims have a voice and some form of redress.
For more information on the Project please visit www.starvationaccountability.org.
About the authors:
Wayne Jordash Qc
Wayne Jordash QC is an international humanitarian law (‘IHL’) expert with experience across the globe, regularly advising governments on human rights and IHL compliance, including the Bangladeshi, Libyan, Serbian, Ukrainian and Vietnamese governments. He is a managing partner of Global Rights Compliance, where he leads a group of international lawyers working to provide advisory services to international organisations, government officials and business enterprises on international law.
Wayne is an internationally recognised expert in the global network of international tribunals, including at the International Criminal Court (ICC) and the International Court of Justice (ICJ) in relation to allegations of genocide, crimes against humanity, and war crimes. He has served as an advocate in international criminal proceedings before the International Criminal Court (‘ICC’), International Court of Justice (‘ICJ’), International Criminal Tribunal for Rwanda (‘ICTR’), Special Court for Sierra Leone (‘SCSL’), and is currently appointed as lead counsel at the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) and the United Nations Mechanism for International Criminal Tribunals (‘MICT’). Wayne is ranked as a leading silk in both the Legal 500 and Chambers and Partners, where he was recommended as “one of the world’s leading international criminal lawyers”.
Called to the Bar of England and Wales in 2009, a member of 1 Crown Office Row Chambers in England. Catriona has practiced across several of the international criminal tribunals and courts, advising on crimes arising out of the Rwandan Genocide, the war in the former Yugoslavia, the Iraq war, the current conflicts in Yemen and Syria. Domestically she is instructed in European Convention of Human Rights claims. She is widely published in international criminal law. She is based in The Hague appointed to the cases of Jovica Stanišić and Alfred Musema before the UN Mechanism for International Criminal Tribunals (MICT). Catriona is ranked as a leading junior in both the Legal 500 and Chambers and Partners, recommended as “a star of the future.” “She has the totality of the evidence at her fingertips and works extraordinarily hard.”Catriona joined Global Rights Compliance (GRC) in 2016, she leads the “Accountability for Mass Starvation: Testing the Limits of the Law”.