CONCEPTUALIZING FAMINE AS A SUBJECT OF INTERNATIONAL CRIMINAL JUSTICE: TOWARDS A MODALITY-BASED APPROACH RANDLE C. DEFALCO* ABSTRACT Since the inception of modern international criminal law (ICL), scholars have considered the issue of potential ICL accountability predicated on mass famine situations. Despite this interest, the sub- ject of famine has remained mostly outside the scope of ICL practice to date. This article revisits the question of potential intersections between ICL and modern famines. In doing so, recent real-world famines in Cambodia, North Korea, Somalia and Darfur, along with the current threat of famine amidst the ongoing civil war in Syria are referenced as examples of potential situations warranting the pur- suit of ICL accountability. These and other examples of modern famine demonstrate that the creation, enforcement or perpetuation of famine represents a modality of harm causation through which various international crimes may be committed. Depending on the circumstances such crimes may take the form of genocide, war crimes and/or crimes against humanity. After providing an over- view of promising ICL entry points for the pursuit of famine ac- countability, this article suggests that famine harms have been * Banting Postdoctoral Fellow, Liverpool University School of Law & Social Justice. S.J.D. & Vanier Scholar, University of Toronto Faculty of Law, 2017. Visit- ing Research Scholar, Cardozo Law Institute in Holocaust and Human Rights, 2016- 2017. Without the support of the United States Institute of International Education Fulbright Program, Documentation Center of Cambodia, and Canadian Social Sci- ences and Humanities Research Council J.A. Bombardier and Vanier Scholarship Programs, this article would not have been possible. Additionally, Youk Chhang, Anne Heindel, Jutta Brunnée and the editorial board of this journal deserve special recognition for their assistance in the development of this article. All errors how- ever, remain solely the author’s. 1113 Published by Penn Law: Legal Scholarship Repository, 2017 1114 U. Pa. J. Int’l L. [Vol. 38:4 largely excluded from the purview of ICL primarily because of per- sistent outdated understandings of the dynamics of famine causa- tion, and the fact that famine situations fail to conform to precon- ceived notions of what constitutes an atrocity event. In order to push back against such preconceptions, this article suggests that famine is better conceptualized as a means or modality through which atrocities may be committed, rather than trying to describe the condition of famine itself as amounting to an international crime. https://scholarship.law.upenn.edu/jil/vol38/iss4/2 2017] Conceptualizing Famine 1115 TABLE OF CONTENTS 1. Introduction ............................................................................. 1117 2. Famine and ICL: The Story So Far ....................................... 1121 3. Revisiting Famine Accountability Opportunities within ICL ............................................................................................. 1129 3.1. Genocide ............................................................................ 1130 3.1.1. Inflicting Genocidal “Conditions of Life” .............. 1132 3.1.2. Genocidal Dolus Specialis .................................... 1133 3.1.3. Intersections Between Famine and Genocide ......... 1134 3.2. War Crimes ....................................................................... 1138 3.2.1. The Armed Conflict “Nexus” Requirement ........... 1139 3.2.2. International versus Non-International Armed Con- flicts ................................................................................... 1140 3.2.3. Victim Identity and Protected Classes ................... 1141 3.2.4. Intersections Between War Crimes and Famine .... 1142 3.3. Crimes against Humanity ................................................. 1149 3.3.1. Chapeau Elements: The Widespread or Systematic At- tack against a Civilian Population ................................... 1151 3.3.1.1. The Attack ..................................................... 1152 3.3.1.2. Widespread or Systematic ............................ 1154 3.3.1.3. Against a Civilian Population ...................... 1156 3.3.1.4. Chapeau Actus Reus ................................. 1158 3.3.1.5. Chapeau Mens Rea .................................... 1158 3.3.2. Specific Crimes against Humanity: Extermination, Prosecution, and Other Inhumane Acts ........................... 1159 3.3.2.1. Extermination ............................................... 1160 3.3.2.1.1. The Massiveness Threshold .................... 1161 3.3.2.1.2. Mens Rea: Knowledge of Mass Death and the Question of “Calculation” ................................. 1162 3.3.2.1.3. Extermination and Famine Mortality .... 1164 3.3.2.2. Persecution ................................................... 1166 3.3.2.2.1. Actus Reus: Severe Infringement of a Fun- damental Right ........................................................ 1166 3.3.2.2.2. Mens Rea: Dolus Specialis ................. 1170 3.3.2.2.3. Persecution and Famine ......................... 1171 3.3.2.3. Other Inhumane Acts ................................... 1173 3.3.2.3.1. Acts of “Similar Gravity” ...................... 1174 3.3.2.3.2. Other Inhumane Acts and Famine ......... 1175 4. Conceptualizing Famine as a Modality of Harm Causation ................................................................................. 1175 Published by Penn Law: Legal Scholarship Repository, 2017 1116 U. Pa. J. Int’l L. [Vol. 38:4 4.1. The Specter of “New” International Crimes ..................... 1178 4.2. Obscuring Causation and Mens Rea Through the Passage of Time .................................................................................... 1178 4.3. Group Perpetration and Causal Overdetermination ......... 1181 4.4. The Commission/Omission Distinction and Concerns of Crim- inalizing Bad Policy Decisions .................................................. 1183 5. Conclusion ............................................................................... 1186 https://scholarship.law.upenn.edu/jil/vol38/iss4/2 2017] Conceptualizing Famine 1117 1. INTRODUCTION True famines1 are periods of horror and social rupture, involving mass trauma and death.2 For centuries, these tragedies were domi- nantly conceptualized in Malthusian terms, as products of overpop- ulation, natural disaster, or some other cause of reduction in per cap- ita food production.3 Today, scholars largely agree that famines are not unforeseeable natural disasters, but are the largely predictable by-products of political and economic causes.4 In this new era of understanding famines as primarily attributable to human agency, certain scholars have proposed that international criminal law (ICL) should play some role in responding to especially flagrant famine- inducing behavior.5 This question, of the relationship between ICL 1 For the purposes of this article, the term “famine” is used to denote situations during which there is a significant increase in death rates amongst a population lacking access to sufficient food. For an overview of the various competing defini- tions of famine, see Paul Howe & Stephen Devereux, Famine Scales: Towards an In- strumental Definition of “Famine,” in THE NEW FAMINES: WHY FAMINES PERSIST IN AN ERA OF GLOBALIZATION 27, 29–35 (Stephen Devereux ed., 2007). 2 CORMAC Ó GRÁDA, FAMINE: A SHORT HISTORY 45–63 (2009) (describing the “horrors” of famine). 3 Early famine scholarship was heavily influenced by the work of Thomas Mal- thus, who viewed famine and the spread of disease as the largely inevitable results of unchecked population growth. For a brief overview of Malthus’ work and its legacy for famine studies, see Stephen Devereux, Introduction, in THE NEW FAMINES: WHY FAMINES PERSIST IN AN ERA OF GLOBALIZATION 1, supra note 1, at 5–6. 4 See, e.g., Amartya Sen, Ingredients of Famine Analysis: Availability and Entitle- ments, 96 Q. J. ECON. 433 (1981) (studying how people use legal means to control food); ALEX DE WAAL, FAMINE CRIMES: POLITICS AND THE DISASTER RELIEF INDUSTRY IN AFRICA (1997) (describing how political acts create famine); Ó GRÁDA, supra note 2, at 1–13 (stating that major famines in the modern era are more often caused by po- litical factors and human activity than by nature). Indeed, locating responsibility for famine causation is a major theme in recent famine scholarship. In a 2007 book introduction, Stephen Devereux identifies “responsibility for famine causation and accountability for famine prevention” as recurring themes in contemporary famine scholarship. Devereux, Introduction, supra note 3, at 13. This generalization is not meant to suggest that there is any one universally agreed upon paradigm of famine, but simply that there exists a more general movement within famine studies away from Malthusian or natural disaster paradigms and towards those focused on hu- man action as the driving force behind famine causation. 5 See, e.g., David Marcus, Famine Crimes in International Law, 97 AM. J. INT’L L. 245 (2003); Grace M. Kang, A Case for the Prosecution of Kim Jong II for Crimes Against Humanity, Genocide, and War Crimes, 38 COLUM. HUM. RTS. L. REV. 51 (2006); Jenny Edkins, The Criminalization of Mass Starvations: From Natural Disaster to Crime Against Humanity, in THE NEW FAMINES: WHY FAMINES PERSIST IN AN ERA OF GLOBALIZATION, supra note 1, at 50; J. Solomon Bashi, Prosecuting Starvation in the Extraordinary Cham- Published by Penn