ACCOUNTING FOR MASS STARVATION:

TESTING THE LIMITS OF THE LAW

GLOBAL RIGHTS COMPLIANCE specialises in services associat-

ed with bringing accountability for violations of international hu-

manitarian law, international human rights law and other
serious crimes. Drawing on decades of experience in conflict
affected areas and transitional justice environments. Global
Rights Compliance provides bespoke technical expertise and
support to State and non-State bodies involved in all stages of
accountability.


THE WORLD PEACE FOUNDATION, an operating foundation
affiliated solely with the Fletcher School of Law and Diplomacy
at Tufts University, provides intellectual leadership on issues
of peace, justice and security. Alex de Waal is the Executive
Director of the World Peace Foundation. Considered one of
the foremost experts on Sudan and the Horn of Africa, his
scholarly work and practice on famines is unparalleled.

Reflections on the two-day expert report conference in London 25-26

October 2018

Introduction
Alex de Waal opened the conference, giving an overview of the Project aims. The purpose of
the conference was for each country expert to present their case, explore the limitations and
strengths of accountability, collectively share expertise and highlight the emerging trends
across each country facing or having endured mass starvation. We benefited over the two-days
from Susanne Jaspers a nutritional expert who has worked in humanitarian aid for over thirty
years, both as a practitioner and researcher. Alex stated the need to move famines and
starvation into the lens of mass atrocities in order to prevent, prohibit, and if necessary, punish.
Alex discussed how victims of starvation are often viewed as ‘second-class victims’: if you die in
a conflict from violence you are remembered and elevated, if you die of hunger it doesn't
usually qualify in the same degree and victims of starvation become a statistic or are forgotten.
The use of integrated Food Security Phase Classification (‘IPC’) was discussed and its fallibility.
How Yemen will be defined under this scale will be telling with a statement expected this
month by Mark Lowcock the United Nations Under-Secretary-General for Humanitarian Affairs
and Emergency Relief Coordinator and the Head of the United Nations Office for the
Coordination of Humanitarian Affairs (‘OCHA’).

1 Expert Report Conference October 2018

 Legal Overview
Catriona Murdoch gave an overview of the law, focusing on the international criminal law crime
(‘ICL’) of starvation found under Article 8 (2) (b) (xxv) (‘A8’) of the Rome Statute. Catriona
explained the reason for the focus on this crime, namely that it is a relatively good attempt at
articulating the law as it was drafted by the Geneva Conventions. There are significant
weaknesses in the A8 crime as it currently stands, such as its non-applicability in a non-
international armed conflict (‘NIAC’) and arguably the mens rea of the offence. The range of
other offences available to prosecute starvation were also discussed, with the caveat that the
more the legal prohibition and labeling diverges from the core elements of the crime of
starvation, the more a prosecution risks failing to capture the essence of the crime. Appropriate
labeling is more than an abstract problem, it ensures that liability appropriately matches the
rights infringed.

A further reason why the Rome Statute crime is in focus is that the way the offence is drafted
under the Rome Statute has been broadly replicated in national statutes such as the
Netherlands, Germany, the UK and elsewhere. Thus when considering universal jurisdiction
claims it will be important to dissect this legal framework.

The Historic Case Studies

Cambodia
Randle de Falco delivered his presentation on the use of starvation as a crime and the famine
in Cambodia between 1975-1979. Randle’s view was that starvation was more appropriate as a
modality, a way of causing harm, rather than a distinct crime. Interesting themes emerged
between the United States bombing extensive bombing campaign across Cambodia destroying
agricultural areas and infrastructure creating food insecurity; similar to the likes we are seeing in
Yemen today. The way starvation and famine were adjudicated upon before the Extraordinary
Chambers in the Courts of Cambodia (‘ECCC’) in the context of crimes against humanity (‘CAH’)
was discussed and the fact that the ECCC Statute made no explicit reference to the crime of
starvation. Randle also discussed the types of documentation and evidence used before the
ECCC and also in academic journals dealing with starvation: policy documents; propaganda;
rice production data; witnesses testimony; and, demographic analysis.

2 Expert Report Conference October 2018

 Ethiopia
Senai Abraha discussed the Ethiopian famine and the pitfalls of the lengthy prosecution of the
Mengistu regime. The Ethiopian penal code did not establish the link between starvation and
the crimes, the charges instead related to killings of students and government officials. The
development of the Ethiopian Penal Code was discussed, with the 2004 Code progressively
penalizing the economic aspects of starvation “Wilful reduction to starvation, destitution or
general ruination through the depreciation counterfeiting or systematic debasement of
currency” (Article 27- War Crimes against the Civilian Population Criminal Code 2004) and
further under Article 523 which outlines the crime of Creation of Distress or Famine.

Yemen
Marco Valentini opened the discussion on Yemen with Martha Mundy. The agricultural history
of Yemen was discussed, the pre-existing vulnerabilities, imports and the conflict more
generally. The logistics of humanitarian food delivery were outlined, with over 5,000 World
Food Programme (‘WFP’) delivery points, lack of fuel, infrastructure damage (roads and ports)
and mishandling and corruption by the beneficiaries themselves, complicating the ability to
draw clear lines of responsibility for malnutrition. In addition the mechanics of food
consumption scores and their shortcomings were also discussed. These assessments rely largely
on assessments conducted by phone, the recent threats to the telecom services and strikes
against the telecom infrastructure, places even more stress upon a delicate system of
assessment and crisis response. Without access by land or telephone, the risk that undetected
pockets of civilians starving or severely malnourished increases exponentially. Food insecurity
and Negative Coping Mechanism assessments were reviewed. Martha Mundy discussed the
economic aspects of the war, the moving of the central bank and the international support
needed to affect such a move, the impact of this upon Yemeni’s, and further the closure of the
airports and attacks on the seaports. How the mens rea can be pieced together in Yemen with
the attacks by the Saudi-led Coalition was explored.

Bosnia
Bridget Conley and Wayne Jordash QC considered the way starvation was used and
prosecuted in the Bosnia during the Yugoslavia war. Bridget focused on the period between
1993 – 1995 and the variety of ways in which food was seemingly used as a weapon of war,
from detention camps, siege and access violations. The jurisprudence of the UN International
Criminal Tribunal for the former Yugoslavia (‘ICTY’) was utilised to show which crimes were used
(the crime of starvation as a distinct crime not featuring on the ICTY statute) and how intention
was found and where the defence teams were able to exploit weaknesses. The comparison
between Bosnia with the multiple parties to the conflict and Syria were discussed and how
criminal responsibility was and wasn’t attributed across those groups.

South Sudan
Tong Anei joined the conference via skype and explained that South Sudan has been dealing
with famine and starvation for three decades and where the manipulation of humanitarian
response has pervaded the conflict. The critical events even prior to the war are economic

3 Expert Report Conference October 2018

 mismanagement, corruption, and a country reliant entirely upon the humanitarian sector. The
issue of mass displacement was discussed and the devastation of the breadbasket area and its
consequences highlighted. During this presentation we saw data presented from Dan Maxwell,
which underscored the problems of relying upon the IPC for defining famine, in particular, that
the temporal duration and magnitude are not included.

Syria
Damaan Humanitarian Organization shared their view from the ground on Syria and gave a
detailed presentation on the siege and situation in Eastern Ghouta and also the ‘Four Towns
Agreement’ which related to Foah, Kefraya, Madaya and Zabadani. The drastic escalation in
food prices; check-point controls; increased tax on money transfers hampering humanitarian
organizations like Damaan; the underground tunnels and dangers associated in those crossing;
and the economic strategy underpinning this, particularly in Eastern Ghouta and how the
regime would financially benefit from the siege warfare and how this played into motive and
intent was explored. Harrowing detail of the conditions of those in Eastern Ghouta were shared,
including how the siege evolved from 2013 to 2018, and the waves of attacks and escalation on
civilians and Damaan staff and facilities. The deliberate use of starvation as a method of warfare
in Eastern Ghouta, with ‘kneel or starve’ written across check-points or walls and the use of
control via ID cards was discussed. International humanitarian law (‘IHL’) obligations such as
precaution, proportionality and evacuation were assessed and the complication raised that for
large segments of those besieged in Eastern Ghouta (estimated 40,000 people) they did not
want to leave. Even if evacuation had been offered many had wished to stay.
The problem of a clear identification of the actors involved in the context of Syria was raised
during the discussion, with a focus on those groups of combatants which are not belonging to
any party to the conflict and which do not reach the level of organization required to be
classified as a non-state armed group under Art. 1 of Protocol II to the Geneva Conventions.

Trends
Over the two-days several cross-country trends emerged such as:
- the targeting of agricultural areas, often via aerial bombardment campaigns (as in
Cambodia and Yemen);
- the effect of multiple warring parties on causation and intent (Bosnia and Syria);
- countries with fragile and insecure food security situations and the resulting effect or
exacerbation of malnutrition following or during conflicts (South Sudan, Ethiopia and
Yemen);
- the consequence of mass or forced displacement and how the crime looks different
when its purpose is to move people or to cause them to surrender (South Sudan, Bosnia
and Syria in particular); and
- the economic tenets of starvation from price spikes and taxation penalties to check-
point levies and salary collapses (Syria and Yemen in particular).

A central discussion was around the evolution of intent, particularly in countries with protracted
conflict histories. As discussed conduct linked to starvation (criminal or otherwise) collectively

4 Expert Report Conference October 2018

 over time often moves from reckless, to negligent to intentional. The political objective and the
criminal objective along with the means of warfare all need to be closely examined to
understand the overall actus and mens rea.

Concerns & Queries

These concerns and queries were raised by the participants and addressed as follows:
- Whether the conflict classification should be covered in depth in each case study. It was
agreed that this needed to be briefly addressed in each section in order to understand
the implications upon warring parties and their status. More detailed analysis on conflict
classifications would largely be covered in the review of the law section;
- To what extent can we disembody the politic from the law and the need to include
political determination and responsibility? It was agreed that this theme should be
covered and further agreed that it was essential we identify where the weak spots of the
report might be and how best to insulate ourselves and the report from criticism;
- To what extent should primary documents and scholarly research be cited. It was agreed
at this stage that full citations and full footnotes would be preferred and we can later
reduce this if needs be. Word count was to come secondary to full and detailed analysis.
If you need to exceed the 7,000-10,000 word count that was ok;
- The responsibility of international facilitators (aiding and abetting) and international
actors such as the U.K and U.S. was raised and how to analyse this; and
- The need and utility of a social nutrition study led by Susanne Jaspers and either
Damaan Organization in Syria or with Tong in South Sudan. Discussing the causes of
malnutrition and conflict as a potential annex to the report. It was agreed that this
should be discussed internally and explored, all were really keen to have such a report.

Deadlines
All drafts are to be submitted by 1 December 2018. Please can we invite participants to touch
base with their reviewers (Marco and Randle – GRC, Senai and Tong – WPF) on or around 16
November 2018, at this stage we would be happy to offer a preliminary review or feedback so
that final drafts could be perfected for the 1 December deadline. Please note that if there any
difficulties in submitting by 1 December this needs to be communicate to GRC or WPF well in
advance.

5 Expert Report Conference October 2018