IJCentral: International Justice Central

Sometimes when you want a strong, legitimate international justice system, you kind of side with the bad guys. And it just feels nasty.

The famine in the Horn of Africa is a real and terrifying tragedy, which isn’t going anywhere fast. So far 13 million people have been affected by the drought and conflict; 3.7 million people have been affected by starvation, and some estimate that in August there could be anywhere from 700 to 2,500 deaths per day in southern Somalia. The UN doesn’t declare famine easily: this is Somalia’s first UN-declared famine since 1984.

This is not a simple act of God or purely the result of drought. The famine is a manmade tragedy. In an effort to help the public recognize this, international development experts have put pen to paper, highlighting how al-Shabab, the terror organization which controls most of southern and central Somalia, is refusing to let in international aid- declaring the reports of famine as “mere propaganda.” In fact, the famine stops at the Somali border, indicating the insurgents are the cause and control the perpetuation of this disaster.

One particularly compelling piece by Charles Kenny in Foreign Policy argues that in order to send home the message that famine is an act of mass murder, the U.N. Security Council should refer al-Shabab’s leadership to the International Criminal Court (ICC), for prosecution on the grounds of the crime against humanity of mass starvation.

And here’s where I disagree with an expert on international development and kind of side with the bad guys.

The reasoning that famine could be a crime within the ICC’s jurisdiction is shaky at best. The ICC’s founding document, the Rome Statute, which determines which crimes the ICC has jurisdiction to prosecute, only lists starvation as a war crime. As such, the crime’s elements require that the starvation occur as a part of an armed conflict. What’s more, the crime is only listed as an international war crime, not national. So to use this crime, we’d need an armed conflict extending beyond Somalia’s borders. That’s just not happening here.

So what about prosecuting it as a crime against humanity? The only crime against humanity provision that famine or mass starvation could fit into is the “catch-all” provision: “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Unfortunately though, the elements for this crime require that the persecutor knowingly intend this act as a part of a widespread or systematic attack directed at a civilian population. Also not really what we have happening in Somalia.

It is completely possible for the ICC to reach outside of the Rome Statute and use customary international law to prosecute this crime, but it probably isn’t advisable. The ICC is still new and is constantly under attack for a lack of legitimacy. Prosecuting crimes outside of its codified jurisdiction is not going to help it in the long run.

I do of course agree that famine is a crime and should be prosecuted. I’m just uncomfortable with the idea of the ICC stretching its jurisdictional mandate in order to prosecute it. The point of having an international criminal court is not simply to send messages that this or that is a crime- it’s to execute a system of justice and end impunity for recognized crimes.

In his article, Kenny linked to a 2003 article by professor of law David Marcus, who argues that the crime of famine or mass starvation currently only has “patch-work” coverage in international customary law, and to rectify this, it should be codified, either as an amendment to the Rome Statute or by an international convention. This argument couldn’t be more relevant today. An amendment or convention would send the message that famine is an act of mass murder without requiring the ICC to stretch its jurisdiction further than it ever has.

Alright, so what do you think?

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Sarah Pierce is a recent law school graduate with a long history of experience working with nonprofit organizations devoted to international justice and social change.
Follow Sarah on Twitter: @sarahcpierce