Crimes in and of Famine

If you find the argument that famine is man-made to be credible, then famine is not just an inevitable outcome of the structural conditions of “failed states” but rather it is purposeful, systematic, and systemic human rights abuse and therefore criminal.

Those who make the argument that the current famine in East Africa is man-made place more blame on political problems of restricted access, entitlements and aid management than the environmental factors of drought, overpopulation, and food scarcity. That Somalia has been hit harder by famine than neighboring Ethiopia and Kenya underscores this point. If famine is, at least predominantly, man-made than by extension there are individuals or groups responsible for causing the famine or exacerbating its effects of death and displacement. As Charles Kenny argues for Foreign Policy, “In order to ensure widespread death by starvation, a governing authority must make a conscious decision: it must actively exercise the power to take food from producers who need it or deny food assistance to victims.”

The debate is not new. For example, in Famine Crimes (1997) Alex de Waal addresses the “political roots of famine” in Africa and the subsequent failings of the “humanitarian international” as an “obstacle rather than aid to conquering famine.” (pxv) More specifically on the question of crimes and responsibility, he argues: “For war crimes, the challenge is to deter those who cause them. The Geneva Conventions contain strong provisions prohibiting the use of starvation as a method of warfare. Criminalizing the infliction of famine requires a further step, namely enforcing the prohibitions by prosecuting those guilty of the crimes. This it to put famine into the category of offences requiring justice, and in particular war crimes.” (p6) Certainly civilians living amidst violence and in poorly functioning states are likely to become food insecure and displaced. But is the present famine, the worst in sixty years, an international crime in and of itself? Both Sarah Pierce and Jens David Ohlin explain the factual case that, technically, the famine is neither a war crime nor a crime against humanity but make the normative argument that it should be. Specifically starvation is a war crime but only in international armed conflicts. And for the famine to constitute a crime against humanity there must be intent and knowledge of a plan to cause “great suffering, or serious injury to body or to mental and physical health” as part of a systemic and systematic attack on civilians. This is where the evidence is mixed and raises questions about determining intent and assigning responsibility to organizations and individuals. Those who breed corruption and war often to blame.

In Somalia, civilians are prevented from fleeing to areas, inside or outside its borders, to access food aid, medical assistance, and protection and aid agencies are deliberately obstructed from providing such assistance inside much of Somalia. Human Rights Watch just released a report, “You Don’t Know Who to Blame:” War Crimes in Somalia, accusing all warring factions in Somalia, particularly al-Shabaab but also government forces, of committing human rights violations and preventing access to aid. But most argue that the Islamic insurgency group, al-Shabaab, is primarily to blame. The report’s author told BBC that “al-Shabaab carries out unrelenting daily repression and brutality in areas under its control, taxing the population for access to water, forcefully recruiting men so they cannot grow crops and restricting access to aid agencies…al-Shabaab must carry he burden of that responsibility for the way in which the fighting has led to human rights violations which have contributed to famine.”
Andrew Jillions, blogging at Justice in Conflict, also directly takes on the question of al-Shabaab’s responsibility or complicity in engineering the famine. And in Kenya too there is finger-pointing at political actors. One Kenyan activist claims “this is a governance drought. It is a situation caused by the government’s failure to plan…” and that big profits can be made from famine.

Whether those perpetrating violence and corruption have intentionally caused vs. exacerbated the famine in the commission of other abuses may matter more for identifying this as a crime and assigning responsibility, but on the ground the end result of either scenario is still increasing death and displacement with little allocation of responsibility.

(Cross-posted at Duck of Minerva)

Impunity Gap: Syria

There is a near absence of calls for accountability in the international responses to the ongoing and escalating violence in Syria. Unlike in the Libya situation, where there was a swift UN Security Council Resolution mandating both the use of force and a referral to the International Criminal Court, influential states and human rights groups have yet to stand firm on either type of response for Syria. Is it simply premature or counter-productive to demand justice when violence has yet to cease? Or are the political and security implications of removing Assad greater than the risks of impunity?

There is some consensus that the scale and manner of the attacks by Syrian forces against civilian protestors constitute crimes against humanity and that President al-Assad is likely “most responsible” for such systematic violence. Estimates put the death toll between 1,600 and 2,000 so far. Comparable to other situations before the ICC, Syria would meet the “sufficient gravity” criteria that determine the selection of situations and cases by the Court’s Office of the Prosecutor and Pre-Trial Chambers. But the much less impartial political criteria that guide the referral of situations to the ICC by the Security Council are more strategic.

While the Security Council has condemned the violence and the US is calling for consensus on stronger measures, there appears to be little political will for an ICC referral. The US, UK, and France have been the strongest critics of the Syrian regime’s actions. China and Russia initially resisted endorsing UNSC interference but then supported the condemnations that were expressed in the Security Council’s first Resolution on August 3rd and are unlikely to block a future resolution. Moreover, the Arab world is now breaking ranks with Syria as many states, notably including Saudi Arabia, recalled their ambassadors and demanded Assad end the attacks.

The international diplomatic responses illustrate that most of the pressure is directed towards marginalizing Assad and his regime with sanctions, expressions of moral outrage, and encouraging an effective opposition in order to incapacitate and and delegitimize his leadership domestically. Accountability, responsibility, and justice are notably absent from the discourse and policies.

Even notable human rights groups are cautiously realistic about an ICC referral. While Amnesty International called for such action, the main thrust of its recommendations is for the UNSC to forego diplomacy and take stronger measures like an arms embargo and freezing the Syrian regime’s assets. Human Rights Watch makes similar recommendations, but stops short of calling for the ICC and instead presses for more cooperation with the OHCHR’s ongoing investigations and, short of Syrian cooperation, to establish an official Commission of Inquiry. David Bosco, blogging at The Multilateralist, questions HRW on whether it would support an ICC referral. Kenneth Roth responded: “Yes in principle, but as a practical matter it’s not realistically on the Security Council agenda yet….so we’re focusing on the accountability steps that currently are in play.”

But, in what amounts to little more than gossipy political intrigue at this stage, there are reports that an unknown Western government is “bankrolling” investigations into the crimes committed by the Syrian regime and ensuring they are credible enough to be put to use in an ICC trial. The fact-finding mission is being carried out by interviewing Syrian refugees in neighboring countries. See Mark Kersten’s post here, blogging at Justice in Conflict, on why this is a sketchy way to politicize and undermine the ICC.

The strategic imperative and lessons learned from the mess of simultaneously combining judicial and military intervention in Libya are undoubtedly undermining support for justice in the short term. Many fear the political and security implications of removing Assad via a negotiated exit or trial. He is a slick autocrat whose regime’s propaganda convinces citizens and foreigners that his rule keeps the pin in a bomb of potential sectarian violence and economic instability. For now the calls for accountability will remain isolated in diplomatic back channels and the blogosphere until politics and principle align for the Security Council.

(See also the first post in this series “Mind the Impunity Gaps” and “Impunity Gap: Sri Lanka“)

Cross-posted at Duck of Minerva

Uganda: War crimes trial may affect LRA defections – analysts

IRIN article

“The trial of Thomas Kwoyelo, a former rebel in Uganda’s Lord’s Resistance Army (LRA), the first such case before the Ugandan High Court’s International Crime Division (ICD), is eliciting mixed reactions. Analysts say that while it may satisfy northerners’ desire for justice, there are concerns over its impact on future LRA defections.  Kwoyelo was charged with war crimes, including murder and kidnapping in various northern Uganda locations, on 11 July in Gulu. He denied the charges.

“The Kwoyelo trial sends mixed messages to current LRA fighters and commanders,” Ashley Benner, a policy analyst with the Enough Project, told IRIN in an email. “On the one hand, the Amnesty Act guarantees amnesty for the LRA, and leafleting and radio programmes provide assurances that they can defect without fear of prosecution. On the other hand, the Amnesty Commission has been inconsistent in granting amnesties, and the Ugandan High Court has begun prosecuting a mid-level LRA commander who has been refused amnesty.” …”

Violence and Vengeance in Ivory Coast

Al Jazeera article

“….Months later, Ouattara is president, Gbagbo is still awaiting trial for war crimes in a secret location in northern Côte d’Ivoire, and the international community is no longer rebuked for not paying enough attention to the Ivorian crisis. They – rather, we - should still be chastised. Despite the general calm and stability, the business of killing remains unfinished in parts of Côte d’Ivoire.

The International Criminal Court reports that at least 3,000 people died in the five-month-long post-election struggle for the presidency between Ouattara’s rebel army, the FRCI, and Gbagbo’s Young Patriots. Ouattara’s forces are reportedly responsible for the killing of 100 people in post-Gbagbo reprisal attacks in which the FRCI, now the formal Republican army, seek out suspected Gbagbo supporters in the southern and western parts of the country.

According to a lengthy Human Rights Watch report, the would-be Young Patriots are targeted on the basis of their ethnicity, age and the assumption that the communities in which they live had political ties to Gbagbo….”

Gaddafi can’t be left in Libya, says international criminal court

Guardian article

“The international criminal court has dismissed suggestions by Britain and France that Colonel Muammar Gaddafi could be allowed to remain in Libya as part of negotiated deal to remove him from power, insisting that a new government would be obliged to arrest the dictator under warrants issued by the court.

The ICC, which Britain and France have signed up to, said that Gaddafi could not be allowed to escape justice. “He has to be arrested,” said Florence Olara, spokeswoman for the court’s chief prosecutor, Luis Moreno-Ocampo….”

 

Darfur….now more genocide in Sudan

Christian Science Monitor article by Eric Reeves

“Yet again, Sudan shows all the signs of accelerating genocide, this time on its southern border.

The question is whether the world will now respond more quickly – and effectively – than it has to the years-long atrocities in Darfur, in western Sudan. Over four years ago the International Criminal Court indicted a senior Khartoum official for crimes against humanity (2007); most recently it has indicted President Omar al-Bashir for genocide (2010). But to date Khartoum has continued to express only contempt for the ICC and human rights reporting generally….”

Ivorian President Says Justice Will Be Applied Equally

VOA news article

“The president of Ivory Coast said justice will be applied equally to his supporters and those of former President Laurent Gbagbo, who were involved in the country’s recent post-election violence. Speaking at a news conference at the United Nations, Alassane Ouattara said his former rival will be tried for some alleged crimes in Ivory Coast and for others, the government will seek help from the International Criminal Court.

President Ouattara said his top priority is Ivorian reconciliation after the country was torn apart by violence following the disputed presidential election in November.

He told reporters that there would be no distinctions in the application of justice for his own supporters and for supporters of Gbagbo. Fighters on both sides are accused of contributing to the bloodshed that killed more than 3,000 people….”

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