There has been an ongoing and interesting discussion about whether the famine in Somalia constitutes a crime against humanity. Andrew Jillions, here at JiC, recently wrote a thought-provoking piece which examined whether famine could be considered a crime against humanity and, if it could, whether there was a case against al-Shabaab. Alana Tiemessen, at Duck of Minerva, has also written a great piece on the subject. This post is an attempt to take a step back from the particular case of the famine in Somalia by asking whether international criminal justice can and should prosecute structural violence.
My argument is simple: contemporary international criminal justice is limited by its inability to adjudicate structural violence, such as famine. Whether instruments of international criminal law, such as the ICC, can or should cover structural crimes is unclear. However, that international justice privileges direct violence over structural violence is a reality that should be challenged. It is surely unsatisfactory, and even unjust, that only some atrocities are provided recourse to justice while others are not.
For as long as humanity has struggled with the concept of peace, the term has primarily been defined as the absence of violence. So long as there were no direct forms of violence – inflicting physical harm upon another individual or group of individuals – then peace was said to exist. Johan Galtung famously termed this conception of peace as “negative peace”. Galtung also expanded the concept of peace in his elucidation of “positive peace” which is achieved only when structural violence, especially social injustices, is eliminated.
Since Galtung’s prescient work, the concept of peace has been picked apart and theorized more so than any other concept, the only exception, perhaps, being ‘justice’. Nevertheless, most still conceive of and accept peace in its negative variant.
It may be that the International Criminal Court is part of an attempt to expand the notion of peace where justice itself is a requirement, where “there is no peace without justice”. However, the Court was created in the context of the continued dominance of negative peace. Crimes against humanity, genocide, and war crimes are generally considered to constitute physical, rather than structural acts perpetrated against victims. The Court’s “holy trinity” of international crimes is seldom applied to structural realities – the conditions in which victims live and which define their ability to live in dignity.
In recent years, however, some cases have emerged which have challenged international criminal justice’s privileging of direct forms of violence, to varying degrees of success.
In northern Uganda, some, including Chris Dolan, have suggested the often squalid internally displaced persons (IDP) camps which were created by the government and were allegedly terrorized by both rebel and government troops, could feasibly constitute a crime against humanity.
“[w]hat Khartoum was unable to accomplish with the massive violence of 2003-04, entailing wholesale destruction of African villages, will be achieved through a ‘genocide by attrition.’ Civilians displaced into camps or surviving precariously in rural areas will face unprecedented shortfalls in humanitarian assistance, primarily food and potable water.”
I have previously argued that the lack of international criminal justice attention on North Korea is suspect and that the structural conditions, including regular famines and widespread malnourishment, into which the Pyongyang regime forces citizens, may be considered under the rubric of international crimes.
Now, as the famine in Somalia has hit, numerous authors have contemplated the application of international criminal justice to al-Shabaab’s role in the starvation of Somali citizens. Cornell’s David Jens Ohlin argues, for example, that:
“But this does not mean that there are no options. The U.N. Security Council can — and should — refer the situation to the chief prosecutor of the International Criminal Court for a full investigation into crimes against humanity in Somalia.
…the right to food is a universally recognized human right. Therefore, the argument goes, if people are dying from a lack of food and potable water, somebody must be responsible and it must be a crime. A crime against humanity sounds just about right.”
Students of history may also remember the 1932-33 Holodomor in Ukraine, a devastating famine in which some 2-8 million Ukrainians perished, the result of Soviet policies. Some argue that the Holodomor was orchestrated by Stalin in order to effectively eliminate an “enemy class” and amounted to genocide.
At the core of all of the above cases is the challenge of finding means of holding those who orchestrate structural violence on the scale of northern Uganda, North Korea and Somalia to account for their actions. If the famines in Somalia and North Korea, the violence of IDP camps in northern Uganda, and the horrific conditions in Darfuri camps, do not constitute international crimes, then what are they and what, if any, justice is there for victims in these cases?
Importantly, whether or not the above cases really do constitute a crime against humanity is not only a legal question, it is fundamentally a moral question.
If the above cases, and the myriad of others like them, are not international crimes, then do we accept that there is no justice for those who are victims of structural violence imposed by governments? Or perhaps there are different “justices” for famine than there are for direct forms of violence, whereby international criminal justice is only applied to the latter. If so, does this not suggest, however, that as long as a regime kills people slowly by putting them in treacherous conditions, then it isn’t the same kind of injustice as when one dies quickly from a bullet, bomb or machete? Importantly, what message does that send to regimes: if you kill slowly, we won’t really notice and you probably will never be arrested? What message does this send to victims: only if you’re killed directly will your family may have recourse to international justice?
None of this is to say that the ICC itself should deal with structural violence (although some are prepared to argue that this should be the case). As Patrick Wegner points out, there is plenty to be skeptical about in regards to the increasing types of situations falling under the rubric of international criminal justice (see also Dov Jacob’s comments here).
Further, as Jillions astutely notes: “you can’t eat justice”. Talking justice won’t save any lives in Somalia right now.
Numerous scholars and observers have noted, it would also be immensely difficult, if not impossible, to allocate individual responsibility for structural crimes such as famine. Yet, as Tiemessen astutely concludes,
“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.”
In the end, it is worth asking a simple question: how many times do we need and will we allow history to repeat itself. The answer seems rather simple. We will allow history to continue to recycle the atrocity of famine if such instances of structural horrors are left unaccounted for, its architects left to reign free while victims’ lives and dignity hang in the balance.
Contemporary international criminal justice, and indeed the broader project of international justice, continues to privilege negative peace and direct forms of violence. It surely cannot be satisfactory, morally or legally, that only some atrocities are held to account or that there is a scale upon which direct crimes are privileged over structural ones.