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Famine Crimes in International Law

Published online by Cambridge University Press:  27 February 2017

David Marcus
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Some of the worst human rights catastrophes of the twentieth century were famines created or manipulated by governments. In 1932 at least five million Ukrainians starved to death, while hunger was largely unknown across the border in Russia.The Soviet government imposed disastrous grain quotas on the Ukraine, then let its own citizens literally collapse in the streets while it exported grain to further its “revolutionary” objectives.The Ethiopian famine of 1983-1985, preserved in popular memory as a natural disaster of biblical proportions, most fiercely struck those parts of the country that harbored irredentist movements. In a stunning, but telling, rejoinder to international pity for the purportedly hapless Ethiopian government, the Ethiopian foreign minister told a U.S. chargé d’affaires that “food is a major element in our strategy against the secessionists.” Since 1994, more than two million out of a population of twenty-two million in North Korea have starved to death, while South Koreans, affected by similar weather patterns, have remained completely untouched by famine. Nongovernmental organizations (NGOs), trying to distribute aid earmarked for famine victims, have watched helplessly as the government callously interfered and have arrived at the conclusion that “the authorities are deliberately depriving hundreds of thousands of truly needy Koreans of assistance.”

Type
Research Article
Information
American Journal of International Law , Volume 97 , Issue 2 , April 2003 , pp. 245 - 281
Copyright
Copyright © American Society of International Law 2003

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References

1 Conquest, Robert, The Harvest of Sorrow: Soviet Collectivization and the Terror-Famine 327 (1986)Google Scholar.

2 Werth, Nicholas, A State Against Its People: Violence, Repression, and Terror in the Soviet Union, in Stéphane Courtois et al., the black book of communism: crimes, terror, repression 33, 167 (Murphy, Jonathan & Kramer, Mark trans., 1999)Google Scholar (“In 1933, while these millions were dying of hunger, the Soviet government continued to export grain . . . ‘in the interests of industrialization.’ ”).

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7 For a good, recent example of this, see Lacey, Mark, Front Line of Famine in Ethiopia Is the Soil, N.Y. Times, Nov. 4, 2001, at A7 Google Scholar (presenting famine in Ethiopia as an inevitability and discussing the causes of famine as stemming from poor growing conditions and drought).

8 Sen, Amartya, Famines and Other Crises, in Development as Freedom 160, 175 (1999)Google Scholar; see also De Waal, supra note 3, at 7 (“For almost a century there has been no excuse for famine.”).

9 I have coined the term “faminogenic,” meaning “creating or aiding in the creation of famine.”

10 For a brief discussion of the international reaction to the Ethiopian famine of 1984–1985, see, Ignatieff, Michael, Is Nothing Sacred? The Ethics of Television, in The Warrior’s Honor: Ethnic War and the Modern Conscience 9, 9–11 (1997)Google Scholar.

11 Brooke, James, One German, and His North Korean Conscience, N.Y. Times, Mar. 19, 2002, at A4 Google Scholar.

12 Id.

13 e.g., Young, Michael K., Testimony Before the Congressional Human Rights Caucus of the United States House of Representatives (Apr. 17, 2002), at <http://www.house.gov/lantos/caucus/TestimonyYoung041702.htm>>Google Scholar (“Notwithstanding the efforts of many who are devoted to helping North Koreans, the international community—governments and human rights groups—has paid insufficient attention to the plight of the North Korean people.”).

14 Hassen, Mohammed, Ethiopia: Missed Opportunities for Peaceful Democratic Process, in State Building and Democratizationin Africa 233 (Mengisteab, Kidane & Daddieh, Cyril eds., 1999)Google Scholar Mayfield, Julie V., Note, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balancing Act, 9 Emory Int’ll. Rev. 553 (1995)Google Scholar.

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Even in the most impoverished societies, famines are not everyday occurrences, and definitions that equate famine with “severe nutrition”, “acute food shortages”, or even “extreme hunger”, while identifying some of the salient aspects of the famine situation, fall short of capturing its totality; they fail to convey the urgency and abhorrence, the sense of crisis and despair.... [F]amine connotes more than a shortfall in individual nutritional needs and daily caloric in take.

Arnold, David, Famine: Social Crisis and Historical Change 6 (1988)Google Scholar.

16 Alex de, Waal, A Re-assessment of Entitlement Theory in the Light of the Recent Famines in Africa, 21 Dev. & Change 469, 470 (1990)Google Scholar (quoting Amartya Sen, Poverty and Famines 40 (1981)).

17 Cherif Bassiouni, M., “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457, 476 (1994)Google Scholar [hereinafter Specialized Convention]; see also Cherif Bassiouni, M., Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9, 15 (1996)Google Scholar.

18 Bassiouni, Specialized Convention, supra note 17, at 476.

19 “Government official” is used throughout this article as the relative “someone” for international criminal law. I use this term because government officials are those most likely to have the resources and authority to commit famine crimes. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted, “[t]he involvement of the state in a criminal enterprise generally results in the availability of extensive resources to carry out the criminal activities in question and therefore greater risk for the potential victims.” Prosecutor v. Kunarac, Judgment, No. IT–96–23, para. 493 (Feb. 22, 2001) [hereinafter Foča judgment]. Selected ICTY decisions since 1997 are available online at the Tribunal’s Web site, <http://www.un.org/icty>. However, the discussion contained herein applies equally well to nongovernmental actors who create, inflict, or prolong famine as to government actors. The ICTY has indicated that international criminal law applies to non state actors. For example, in the Foča judgment, the Tribunal stated, “A violation of one of the relevant articles of the [Tribunal’s] Statute will engage the perpetrator’s individual criminal responsibility.... With or without the involvement of the state, the crime committed remains of the same nature and bears the same consequences.” Id.; see also Prosecutor V. Kupreškić judgment, No. IT–95–16, para. 555 (Jan. 14, 2000).

20 Alston, Philip, International Law and the Human Right to Food, in The Right to Food 9, 9 (Alston, Philip & Katarina, Tomaševski eds., 1984)Google Scholar (stating that “the right to food has been endorsed more often and with greater unanimity and urgency than most other human rights “); see also Human Rights Committee, General Comment No. 12, The Right to Adequate Food, Un Doc. E/C.12/1999/5, para. 4 (“The Committee affirms that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights.”).

21 Universal Declaration of Human Rights. GA Res. 217A (III), Art. 25(1), UN Doc. A/810, at 71 (1948), available at <http://www.unhchr.en/html/menu3/b/69.html>>Google Scholar [hereinafter UDHR].

22 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966 Google Scholar, Art. 11(2), 993 Unts 3 [hereinafter ICESCR].

23 Brownlie, Ian, The Human Right to Food: Study Prepared for the Commonwealth Secretariat, para. 16 (1987)Google Scholar. Not all commentators agree that the right to food is established in international law, in spite of the ICESCR. See, e.g., Bard, Robert L., The Right to Food, 70 Iowa L. Rev. 1279, 1280 (1985)Google Scholar.

24 Universal Declaration on the Eradication of Malnutrition and Hunger, GA Res. 3180 (XXVIII), pmbl. (Nov. 16, 1974)Google Scholar.

25 See, e.g., Commission on Human Rights, Res. 1999/24 (Apr. 23, 1999); Sub-Commission Res. 1996/25, The Realizationof Economic, Social and Cultural Rights (Nov. 25, 1996).

26 The Right to Food, GA Res. 56/155, op. paras. 2, 4 (Feb. 15, 2002) (second emphasis added).

27 ICESCR, supra note 22, Art. 2(1) (emphasis added).

28 World Food Summit, Plan of Action, UN Doc. WFS/3, para. 13 (1996), available at <http://www.fao.org/wfs/index_en.htm>.

29 Guy S., Goodwin-Gill, Obligations of Conduct and Result, in The Right to Food, supra note 20, at 111, 111 Google Scholar (“The briefest comparison of article 2 [of the ICESCR] with its counterpart in the Civil and Political Rights Covenant is already revealing. In the latter, states undertake ‘to respect and to ensure’, and to take the necessary steps ‘to give effect’, to the rights recognized . . .”).

30 Twenty states have adopted constitutions that refer to the right to food. But only a few have adopted legislation or policies to ensure that the right is realized. Robinson, Mary, The Right to Food: Achievements and Challenges (2002), available at <http://www.fao.org/Legal/rtf/wfs.htm>>Google Scholar.

31 See, e.g., Bard, supra note 23, at 1288.

32 See, e.g., Danilo, Türk, The Realization of Economic, Social and Cultural Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1992/16, para. 12 Google Scholar; see also Buergenthal, Thomas, International Human Rights in a Nutshell §2–10 (1995)Google Scholar (noting that in comparison to the protection of most civil and political rights, “[t]he burden tends to be heavier and the task more complicated when economic, social or cultural rights are involved. In general, their enjoyment cannot be fully ensured without economic and technical resources, education and planning, the gradual reordering of social priorities and, in many cases, international cooperation.”).

33 For a discussion of this problem, see Scheinin, Martin, Economic and Social Rights as Legal Rights, in Economic, Social and Cultural Rights 41, 42 (Asbjörn, Eide et al. eds., 1995)Google Scholar. But see Leckie, Scott, Violations of Economic, Social and Cultural Rights, in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 35, 36 (Theo C., van Boven et al. eds., 1998), available at <http://www.law.uu.nl/english/sim/specials/simsp20.asp>Google Scholar.

34 The UN Committee on Economic, Social and Cultural Rights observes:

The shocking reality... is that States and the international community as a whole continue to tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. In effect, despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights.

World Conference on Human Rights, Preparatory Committee, Contribution Submitted by the Committee on Economic, Social and Cultural Rights, UN Doc. A/CONF. 157/PC/62/Add.5, para. 5 (1993); see also Steiner, Henry J. & Alston, Philip, International Human Rights in Context: Law, Politics, Morals 256–57 (1996)Google Scholar (observing that most governments support the “equal status and importance of economic and social rights” but fail to “take particular steps to entrench those rights constitutionally, to adopt any legislative or administrative provisions based explicitly on the recognition of specific economic and social rights as human rights, or to provide effective means of redress to individuals or groups alleging violations of those rights”).

35 Commission on Human Rights, The Right to Food: Report of the High Commissioner for Human Rights, UN Doc. E/CN.4/1998/21, para. 17(a).

36 Amartya Sen, widely understood as the most successful proponent of this argument, won the Nobel Prize in Economics for his work on famines in 1998. His theory of public action, which argues that through certain governmental interventions famine can be entirely avoided, has won widespread acceptance in the academic literature. See de Waal, supra note 16, at 469; Joachim von, Braun, Teklu, Tesfaye, & Webb, Patrick, Famine as the Outcome of Political Production and Market Failures, IDS Bull., No. 4, 1993, at 73, 74 Google Scholar.

37 Drèze and Sen argue that “it has to be recognized that even when the prime mover in a famine is a natural occurrence such as a flood or a drought, what its impact will be on the population would depend on how society is organized.” Jean, Drèze & Sen, Amartya, Hunger and Public Action 46 (1989)Google Scholar.

38 Brooke, supra note 11.

39 Teklu, Tesfaye, The Prevention and Mitigation of Famine: Policy Lessons from Botswana and Sudan, 18 Disasters 35, 39 (1994)Google ScholarPubMed; see also De Waal, supra note 3, at 43.

40 Sen, supra note 8, at 178. Others have made the same observation. Watts, Michael, Entitlements or Empowerment? Famine and Starvation in Africa, Rev. Afr. Pol. Econ., No. 51, 1991, at 9, 11 CrossRefGoogle Scholar (“Indeed, it is not easy to find an example of a famine in countries in which a free press, harnessing the power of famine images and the moral weight of the right to be free from hunger, is capable of mobilizing popular support and political opposition.”).

41 DrÈze & Sen, supra note 37, at 263.

42 Philip Alston observes that respect for these rights is important in securing the right to food: “[I]n the vast majority of cases progress towards the realization of the right to food has gone hand in hand with the enjoyment of other rights such as those concerning popular participation in decision-making, the rights to freedom of association, expression and information . . . .”Alston, supra note 20, at 20.

43 Alex de, Waal, A Human Rights Agenda to Prevent Starvation in Africa, Peace & Democracy News, Summer 1991, at 50 Google Scholar.

44 Sen, supra note 8, at 180; see also De Waal, supra note 3, at 16 (noting that “in a country where some basic political liberties can be enjoyed,” famine “is also a concern for politicians”). A cursory historical glance supports Sen’s linking of democratic political rights with famine. In sub-Saharan Africa, where most of the world’s famines occur, countries with strong commitments to democracy do not suffer from famine. In contrast, their authoritarian oranarchic neighbors have a much more lamentable record. Braun, Joachimvon, Teklu, Tesfaye, & Webb, Patrick, Famine in Africa: Causes, Responses and Prevention 19 (1998)Google Scholar.

45 Watts, supra note 40, at 17.

46 De Waal, supra note 3, at 2 (emphasis added).

47 Kurt Jonassohn with Karin, Solveig Björnson, Genocide and Gross Human Rights Violations in Comparative Perspective 33 (1998)Google Scholar.

48 Dando, W. A., Man-Made Famines: Some Geographical Insights from an Exploratory Study of a Millennium of Russian Famines, 4 Ecology Food & Nutrition 219, 229 (1976)Google Scholar. Robert Conquest observes that “the number dying in Stalin’s war against the peasants was higher than the total deaths for all countries in World War I.” Conquest, supra note 1, at 4 (emphasis added).

49 Jonassohn & Björnson, supra note 47, at 33, summarize the motives for the famine:

Stalin in the Ukraine performed the first carefully planned, large-scale famine in the twentieth century. He wanted to collectivize agriculture not only to eliminate the kulaks [middle class peasants], but also in order to increase production. At the same time, he wanted to accelerate industrialization. The increased agricultural production was intended for export in order to pay for the import of the technology that was essential to his program of industrialization The Ukraine was particularly targeted by him because it was the breadbasket of the USSR and also the seat of a strong, nationally self-conscious identity.

50 Conquest, supra note 1, at 264.

51 Figes, Orlando, A People’s Tragedy: The Russian Revolution 1891–1924, at 705 (1996)Google Scholar. For a description of the NEP, see Mace, James E., The Man-Made Famine of 1933 in the Soviet Ukraine: What Happened and Why? in Toward the Understanding and Prevention of Genocide 67, 69 (Charny, Israel W. ed., 1984)Google Scholar.

52 Figes, supra note 51, at 705; see also Mace, supra note 51, at 71.

53 Mace, supra note 51, at 70.

54 Id. Stalin announced the liquidation of the kulaks as a class and the total forced collectivization of agriculture on December 29, 1929. Id. at 72.

55 Conquest, supra note 1, at 3.

56 Id. at 219.

57 The newspaper Proletars’ka Pravda, on January 22, 1930, gave the rationale for collectivization in the Ukraine: “ ‘to destroy the social basis of Ukrainian nationalism—individual peasant agriculture.’ ” Mace, supra note 51, at 73 (quoting the newspaper).

58 Conquest, supra note 1, at 219.

59 Id. at 223.

60 Id. at 222–23.

61 Mace, supra note 51, at 74.

62 Werth, supra note 2, at 162.

63 Conquest, supra note 1, at 229–30.

64 Id. at 231.

65 Social scientists refer to the action taken by at-risk individuals to protect themselves against famine by improving their exchange entitlements as “coping”; included among various coping strategies is movement to where food is more readily available. Von Braun, Teklu, & Webb, supra note 36, at 77.

66 Conquest, supra note 1, at 237 (“The Ukrainian peasant was indeed prevented by border guards from entering Russia proper; and if he evaded these and returned with bread, which was at least obtainable there, the bread was seized at the border, and the owner often arrested,. . .”).

67 Werth, supra note 2, at 164. In one month in early 1933, the government intercepted 219, 460 people trying toreach the cities. Id.

68 Chalk, Frank & Jonassohn, Kurt, The History and Sociology of Genocide: Analyses and Case Studies 306 (1990)Google Scholar.

69 Conquest, supra note 1, at 235–36.

70 Werth, supra note 2, at 163.

71 Id. at 164.

72 Mace, supra note 51, at 77.

73 Conquest, supra note 1, at 324–25.

74 Id. at 329.

75 Id. at 328. James Mace claims that the “purpose . . . was to destroy the Ukrainian nation as a political factor and social organism, a goal which could be attained far short of complete extermination.” Mace, supra note 51, at 67.

76 Conquest, supra note 1, at 220, writes:

By [1932] everyone who could possibly be called a kulak under any rational analysis whatever had already been removed. The famine-terror was to be inflicted wholly on the collectivized ordinary peasant and the surviving individual peasants, usually even poorer. That is, it was not part of the collectivization drive, which was already virtually complete. Yet, incredibly, the “kulak” still remained The kulak [Stalin said], “had been defeated but not completely exterminated.”

77 Id. at 233.

78 For an excellent discussion of the history of the Ethiopian famine of 1984–1985, see Africa Watch, Evil Days: Thirty Years of War and Famine in Ethiopia (1991)Google Scholar.

79 Id. at 5.

80 Id. at 13.

81 In addition to the 1984–1985 famine, Ethiopians starved in 1974 and faced famine like conditions as recently as the autumn of 2001. Lacey, supra note 7.

82 Haile Selassie apparently believed in the preservation of existing social relationships, including those involving beggars, and was hesitant to intervene. Penrose, Angela, Before and After, in The Ethiopian Famine 80, 96 (Jansson, Kurt et al. eds., Rev. ed. 1990)Google Scholar.

83 For a description of Ethiopian land reforms, see Von Braun, Teklu, & Webb, supra note 44, at 27. Elsewhere these same authors refer to Mengistu’s policies as “Stalinist.” Von Braun, Teklu, & Webb, supra note 36, at 75.

84 De Waal, supra note 3, at 110.

85 On incentives, see Penrose, supra note 82, at 120. On declines in food production, which fell by one-half to two-thirds between the Dergue’s takeover and the mid-1980s, see Clay, Jason W. & Holcomb, Bonnie K., Politics and the Ethiopian Famine 1984–1985, at 191 (1985)Google Scholar.

86 Dawit Wolde Giorgis, the head of the Relief and Rehabilitation Commission (RRC), nominally in charge of famine relief, reports the idealistic intent of the Dergue upon wresting power from Haile Selassie. Dawit, Wolde Giorgis, Red Tears: War, Famine and Revolution in Ethiopia 267 (1989)Google Scholar. However, he observes that the Dergue was utterly incapable of effecting its idealistic visions:

An examination of Mengistu’s agricultural policies reveals a legacy of unforgiveable folly, mismanagement, and neglect. Fertile farmlands are ill-used and the morale of the peasant farmers has been crushed under revolutionary “innovations.” . . . [State] farms intended to be showcases of socialist prosperity are models of inefficiency and waste, while natural resources are squandered by both individuals and government. Id. at 266.

87 Africa Watch, supra note 78, at 133 (“The most remarkable fact about the famine of 1983–5 in Ethiopia wasthat, by the time the drought struck, the famine was already well under way.”).

88 Jonassohn & BjÖrnson, supra note 47, at 36.

89 Clay & Holcomb, supra note 85, at 191.

90 Id. (emphasis added).

91 Id. at 194.

92 Dawit Giorgis claims that by 1985 “it was hardly a secret that [Ethiopia was] in trouble. Anyone who cared to know had read it in the reports of [the RRC] and the international voluntary agencies.” Giorgis, supra note 86, at 127.

93 Giorgis describes a planning meeting in 1985 when the Dergue crafted a plan for continuing the economicpolicies that had led to famine. Id. at 127–28.

94 De Waal supra note 3, at 112. Tigray, whose inhabitants were distinct ethnically and religiously from other Ethiopians, has traditionally been unhappily wedded to Ethiopia. Sec Penrose, supra note 82, at 129.

95 See generally Waxman, Matthew C., Siegecraft and Surrender: The Law and Strategy of Cities as Targets, 39 Va.J. Int’l L. 353 (1999)Google Scholar.

96 Macrae, Joanna & Zwi, Anthony B., Food as an Instrument of War in Contemporary African Famines: A Review of the Evidence, 16 Disasters 299, 301 (1992)Google Scholar.

97 See infra pt. II.

98 Africa Watch, supra note 78, at 141. The insurgents in Tigray referred to their strategy of intermingling with civilians to evade detection as moving “like a fish through water.” Id. at 139.

99 De Waal, supra note 3, at 117.

100 Macrae & Zwi, supra note 96, at 304.

101 Clay & Holcomb, supra note 85, at 194.

102 De Waal, supra note 3, at 118; see also Macrae & Zwi, supra note 96, at 305–06.

103 De Waal, supra note 3, at 118.

104 Macrae & Zwi, supra note 96, at 307 (“Where people maintain their freedom to move in and around the area,. . . they can trade grain for other commodities, and may be able to supplement rations with wild foods. They can also take advantage of employment and trade opportunities, or claim patronage from kin . . .”).

105 See generally Hardcastle, Rohan J. & Chua, Adrian T., Humanitarian Assistance: Towards a Right of Access to Victims of Natural Disasters, Int’l Rev. Red Cross, No. 325, Dec. 1998, at 589 Google Scholar.

106 Rome Statute of the International Criminal Court, July 17, 1998, Art. 8(2) (b) (xxv), UN Doc. A/CONF.183/9*(1998), reprinted in 37 ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES–5, available at <http://www.un.org/icc> [hereinafter ICC Statute] (“ [i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”).

107 Macrae & Zwi, supra note 96, at 306.

108 De Waal, supra note 43, at 52.

109 Id. In all, six hundred thousand people were resettled.

110 Clay & Holcomb, supra note 85, at 50.

111 Id. at 49.

112 De Waal, supranote 3, at 115.

113 See, e.g., Giorgis, supra note 86, at 268.

114 Penrose, supra note 82, at 136.

115 Clay & Holcomb, supra note 85, at v.

116 Penrose, supra note 82, at 134–36.

117 Africa Watch, supra note 78, at 155.

118 Giorgis, supra note 86, at 135; accord Africa Watch, supra note 78, at 156.

119 Giorgis describes confronting Mengistu with the facts of the famine in 1984:

I approached Mengistu respectfully, making a great effort not to anger him. I told him that. . . what I had personally observed indicated the makings of a terrible famine . . . . I explained that we needed more money to prepare for the crisis.

He listened impatiently, then told me not to be so panicky—to stay cool. He said that the very name of the agency I was heading [the RRC] invited trouble and encouraged begging. “You must remember that you area member of the Central Committee,” he said. “Your primary responsibility is to work toward our political objectives. Don’t let these petty human problems that always exist in transition periods consume you. There was famine in Ethiopia for years before we took power—it was the way nature kept the balance.”

Giorgis, supra note 86, at 128.

120 Africa Watch, supra note 78, at 156.

121 Baker, Michael, Empathy Wins Trust of Wary N. Koreans, Christian Sci. Monitor, Oct. 6, 1997, at 7 Google Scholar.

122 N. Korea Says 3 Million Dead in Famine, UPI, Feb. 18, 1999, available in LEXIS, News Library, Wire Services File.

123 Foster-Carter, supra note 5.

124 Action Against Hunger, supra note 6 (“The break-down of the Soviet Union and China’s economic turn have. . . plunged the North Korean economy into a very serious energy crisis. The productivity of Korean agriculture, highly dependent on machines and fertilisers, has rapidly fallen.”); see also Natsios, Andrew, the Politics of famine in North Korea 2 (1999), available at <http://www.usip.org/oc/sr/sr990802.html>>Google Scholar (“The food crisis did not begin with the floods in August 1995, as has been commonly understood, but with the sharp reduction in heavily subsidized food, equipment, and crude oil from the Soviet Union and China in the early 1990s.”).

125 Crossette, Barbara, Hunger in North Korea: A Relief Aids’s Stark Report, N.Y. Times, June 11, 1997, at A8 Google Scholar.

126 Foster-Carter, supra note 5.

127 Natsios, supra note 124, at 2.

128 Id. at 3–4.

129 Brill, Jennifer, North Korean Famine Claims Two Million Lives (Aug. 24, 1998), at <http://www.disasterrelief.org/Disasters/980824NorthKorea/>>Google Scholar.

130 Nelan, Bruce W., The Politics of Famine, Time, Aug. 25, 1997, at 51 Google Scholar.

131 See, e.g., id.

132 Sen, Joseph Biden, North Korean Famine—A Human Tragedy and a Threat to Peace, 143 Cong. Rec. S8487 (dailyed. July 31, 1997)Google Scholar.

133 Nelan, supra note 130, at 52.

134 Natsios, supra note 124, at 5; see also Action Against Hunger, supra note 6.

135 Action Against Hunger, supra note 6; see also Peacewatch, North Korea Loosens Controls to Combat Starvation (Aug. 1997), available at <http://www.usip.org/pubs/PW/897/korea.html>>Google Scholar. According to Andrew Natsios:

Pyongyang, the capital, is getting 450 grams of food a day, which is a minimum ration, but it will keep you alive. The rest of the country is getting 100 grams, which is way below what you need to survive. and the Northeast region, where we believe the greatest starvation is . . . . [t]hey are getting no food distribution; from what we hear, have gotten nothing this year at all.

The Newshour: Starvation in North Korea (PBS television broadcast, June 11, 1997) (interview with Andrew Natsios), at <http://www.pbs.org/newshour/bb/asia/june97/korea_6-l 1.html>.

136 Action Against Hunger, supra note 6.

137 Id

138 Natsios, supra note 124, at 8 (emphasis added).

139 All humanitarian aid must flow through government channels. Action Against Hunger, supra note 6.

140 Id.

141 Id.

142 UDHR, supra note 21, Art. 13(1) (“Everyone has the right to freedom of movement and residence within the borders of each State.”); id., Art. 17(1) (“Everyone has the right to own property...”); id., Art. 17(2) (“No one shall be arbitrarily deprived of his property.”).

143 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 12(1), 999 Unts 171 [hereinafter ICCPR].

144 UDHR, supra note 21, Art. 23(3) (“Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity . . .”).

145 Philip Alston spells out this simple equivalence:” [A]ny proposed limitations on the right to food which could result in death by starvation are clearly unacceptable. Apart from violating the right to food provisions, such limitations would also violate the right to life . . . .”Alston, supra note 20, at 21.

146 Nowak, Manfred, U.N. Covenant on Civil and Polrrical Rights: CCPR Commentary 104 (1993)Google Scholar (noting that “without effective guarantee of this right, all other rights of the human being would be devoid of meaning”).

147 Ratner, Steven R. & Abrams, Jason S., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 12 (1997)Google Scholar.

148 Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of theCrime of Genocide, Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc.E/CN.4/Sub.2/1985/6, para. 14.

149 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. 2, 78 Unts 227 (entered into force Jan. 12, 1951).

150 Schabas, William A., Genocidein International Law 243 (2000)Google Scholar (“[T]he word ‘deliberately’ is a pleonasm, because the chapeau of article II already addresses the question of intent. The acts defined in paragraphs (a) and(b) of article II must also be ‘deliberate’, although the word is not used” (footnote omitted)).

151 Report of the Preparatory Commission for the International Criminal Court, Addendum, Part II, Finalized Draft Text of me Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2, Art. 6 (c) n.4, available at <http://www.umn.edu/humanrts/instree/iccelementsofcrimes.html>

152 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 654, para. 2097 (Sandoz, Yves, Swinarski, Christophe, & Zimmermann, Bruno eds., 1987), available at <http://www.icrc.org>>Google Scholar [hereinafter Protocol Commentary].

153 Prosecutor v. Kayishema, Judgment and Sentence, No. ICTR–95–1–T, para. 116 (May 21, 1999). ICTR decisions are available online at the Tribunal’s Web site, <http://www.ictr.org>.

154 See generally Jonassohn & BjÖrnson, supra note 47.

155 ICC Statute, supra note 106, Art. 30(1).

156 Schabas, supra note 150, at 211. Schabas describes a situation that fits well with the historical illustrations discussed in this article:

Although there is as yet no case law on this subject, it is relatively easy to conceive of examples of recklessnesswithin the context of genocide. A commander accused of committing genocide by “inflicting on the groupconditions of life calculated to bring about its physical destruction”, and who was responsible for imposing a restricted diet or ordering a forced march, might argue that he or she had no knowledge that destructionof the group would indeed be the consequence. An approach to the knowledge requirement that considers recklessness about the consequences of an act to be equivalent to full knowledge provides an answer to such an argument.

Id. at 212.

157 Kayishema, supra note 153, para. 91.

158 Alexander K. A., Greenawalt, Note, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Colum. Rev. 2259, 2266 (1999)Google Scholar.

159 Schabas, supra note 150, at 218.

160 Prosecutor v. Krstić, Judgment, No. IT–98–33–T, para. 561 (Aug. 2, 2001), excerpted in 40 ILM 1346 (2001); Prosecutor v. Bagilishema, Judgment, No. ICTR–95–1A–T, para. 61 (June 7, 2001).

161 Draft Code of Crimes Against the Peace and Security of Mankind, Commentary to Art. 17, para.5, in Report of the International Law Commission on the Work of Its Forty-eighth Session, UN GAOR, 51st Sess., Supp. No. 10, at 14, UN Doc. A/51/10 (1996), available at <http://www.un.org/law/ilc/texts/dcodefra.htm> [hereinafter ILC Report] (“[A] general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crimeof genocide.”); see also Krstić, supra note 160, para. 561.

162 Krstić, supra note 160, para. 571, which states:

Some legal commentators further contend that genocide embraces those acts whose foreseeable or probable consequence is the total or partial destruction of the group without any necessity of showing that destruction was the goal of the act [footnote omitted]. Whether this interpretation can be viewed as reflecting the status of customary international law at the time of the acts involved here is not clear. For the purpose of this case, the Chamber will therefore adhere to the characterisation of genocide which encompasses only acts committedwith the goal of destroying all or part of the group.

163 Alexander K. A. Greenawalt gives two helpful examples of this quandary. First, discussing Pol Pot’s Cambodia, he notes that because the higher-level cadres of the Khmer Rouge had as their purpose the establishment of aCommunist system, they did not specifically intend the mass destruction of the Cambodian population, even thoughthe destruction of this group was a foreseeable result. The Khmer Rouge specifically intended to revolutionize the Cambodian political economy; the massacre of most of the Cambodians (principally by starvation and disease)was merely instrumental to this goal and not the goal itself. Second, Greenawalt notes that the annihilation of 50% of Paraguay’s Ache Indians between 1962 and 1972 during a campaign to free Ache land for economic developmentdoes not fall within the purview of the law of genocide, as the purported goal of the government was tofurther economic development. Greenawalt, supra note 158, at 2285.

This result, which stems from the particular definition of genocide, seemingly conflates motive and intent. Motiveis almost never a consideration when ascertaining a mental state. Williams, Glanville, The Mental Element in Crime 14 (1965)Google Scholar (calling motive “legally irrelevant”). The “as such” phrase in the definition, however, arguably incorporates a motive into the mens rea standard under the Convention. For a general discussion of the motiveversus intent debate in this regard, see Schabas, supra note 150, at 245–54 (concluding that motive cannot bealtogether dismissed as an element of the crime of genocide, because ‘as such’ was included ‘as a compromise’with those calling for a “motive component”).

164 Ratner & Abrams, supra note 147, at 32.

165 Whitaker, supra note 148, para. 36.

166 Id., para. 31 (“It is note worthy that the definition” of genocide in the Convention “does not exclude cases where the victims are part of the violator’s own group.”).

167 By international humanitarian law, I mean the law of armed conflict, defined by the International Committeeof the Red Cross (ICRC) as follows:

[T]he expression of international humanitarian law applicable in armed conflict means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directlyarising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict.

Protocol Commentary, supra note 152, at xxvii.

168 Alston, supra note 20, at 26.

169 Waxman, supra note 95, at 408–09. For a general discussion of sieges and blockades, see Walzer, Michael, Just and Unjust Wars 160–75 (1977)Google Scholar.

170 U.S. War Department, General Orders No. 100, Apr. 24, 1863, Art. 17, reprinted in The Laws of Armed Conflicts 3 (Schindler, Dietrich & Jiří, Toman eds., 3d Rev. ed. 1988), available at <http://www.civilwarhome.com/liebercode.htm>>Google Scholar.

171 Allen, Charles A., Civilian Starvation and Relief During Armed Conflict: The Modern Humanitarian Law, 19 Ga. J. Int’l & Comp. L. 1, 31 (1989)Google Scholar (“Acts directed at starvation of people, including the impediment of relief efforts onbehalf of starving populations, have long roots in the history of warfare.”). For a thorough discussion of the historyof siegecraft, see generally Waxman, supra note 95, at 357–401.

172 Allen, supra note 171, at 32.

173 United States v. Von Leeb, 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 563 (1950) (quoting 3 Charles, Cheney Hyde, International Law 1802–03 (2d Rev. ed. 1945)Google Scholar) [hereinafter Trials] .

174 Id.

175 Because “ [d]etermining the precise content of customary international law presents momentous difficulties,” I emphasize treaty law. Mettraux, Guenael, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L J. 237, 242 (2002)Google Scholar.

176 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 23, 6 UST 3516, 75 Unts 287 [hereinafter Geneva Convention FV] .Yoram Dinstein remarks on the limited reach of the protectionof Article 23 with regard to civilians generally: “But even if Article 23 is applicable to sieges in land warfare, it is note worthy that there is no requirement to allow supply of essential food stuffs to the civilian population ingeneral, as distinct from certain groups deemed particularly ‘vulnerable’.” Dinstein, Yoram, Siege Warfare and the Starvationof Civilians, in Humanitarian Law of Armed Conflict: Challenges Ahead 145, 148 (Astrid J. M., Delissen & Tanja, Gerard J. eds., 1991)Google Scholar.

177 Geneva Convention IV, supra note 176, Art. 23.

178 International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilianpersons in Time of War: Commentary 182–83 (Pictetgen, Jean. ed., 1958), available at <http://www.icrc.org>>Google Scholar [hereinafter Geneva IV Commentary].

179 Allen, supra note 171, at 39.

180 See, e.g., Protocol Commentary, supra note 152, at 1457, para. 4797 (observing that “up to now [i.e., 1977] there has been no express rule of law forbidding besieging forces to let civilians die of starvation”).

181 Geneva Convention IV, supra note 176, Art. 55.

182 Geneva IV Commentary, supra note 178, at 310.

183 See generally Waxman, supra note 95, at 421 (“[S]iege methods have long been given leniency in customarylaw because they were seen as the only viable means of securing certain military objectives.”).

184 Peter, Macalister-Smith, Protection of the Civilian Population and the Prohibition of Starvation as a Method of Warfare, Int’l Rev. Red Cross, No. 284, Sept.–Oct. 1991, at 440, 441 Google Scholar.

185 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Art. 54, 1125 Unts 3 [hereinafter Protocol I].

186 Dinstein, supra note 176, at 148.

187 Id. at 150.

188 Cassese, Antonio, The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law, 3 UCLA Pac. Basin L.J. 55, 90 (1984)Google Scholar.

189 Protocol Commentary, supra note 152, sat 654, para. 2095 (first emphasis added).

190 Protocol I, supra note 185, Art. 70(1).

191 Protocol Commentary, supra note 152, at 819, para. 2805 (observing that this clause in Article 70 “was added . . . essentially out of a concern to protect the national sovereignty of the State receiving the relief”).

192 Marco, Sassòli & Bouvier, Antoine A., How does Law Protect in War? 182 (1999)Google Scholar.

193 Protocol Commentary, supra note 152, at 819, para. 2805.

194 See, e.g., The Right to Food, Report of the High Commissioner for Human Rights, UN Doc. E/CN.4/1999/45, para. 41 (in defining the rights to food and nutrition, the right to food “in emergency situations should be taken into account. This included the right to receive food aid in times of critical need, and the obligation of States togrant access to impartial humanitarian organizations to provide food aid and other humanitarian assistance, as established in international humanitarian law.”).

195 Ethiopia became a party to Protocols I and II in 1994.

196 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, Art. 14, 1125 Unts 609 [hereinafter Protocol II].

197 Protocol Commentary, supranote 152, at 1456, para. 4795 (“The prohibition on using starvation against civiliansis a rule from which no derogation may be made. A form of words where by it would have been possible to make an exception in case of imperative military necessity was not adopted.”).

198 Id., at 1457, para. 4796 (admitting that blockades may “remain legitimate”).

199 Id., para. 4798.

200 Protocol II, supra note 196, Art. 18(2) (emphasis added).

201 Protocol Commentary, supra note 152, at 1479, para. 4885.

202 Cassese, supra note 188, at 91.

203 Mettraux, supra note 175, at 242.

204 Meron, Theodor, The Geneva Conventions as Customary Law, 81 AJIL 348, 361 (1987)Google Scholar.

205 Cassese, supra note 188, at 90. Certainly, the prohibitions in the Geneva Conventions are declaratory of customary’international law. Meron, Theodor, International Criminalization of Internal Atrocities, 89 AJIL 554, 558 (1995)Google Scholar.

206 ICC Statute, supra note 106, Art. 8(2) (b) (xxv) (providing for individual criminal liability for “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival”).

207 Id., Art. 8(2) (e).

208 Theodor Meron observes that “[u]ntil very recently, the accepted wisdom was that [the laws of internal armed conflict] . . . constituted, at least on the international plane, an uncertain basis for individual criminal responsibility.’’Meron, supra note 205, at 559; see also SassÒli & Bouvier, supra note 192, at 247.

209 SassÒli & Bouvier, supra note 192, at 247.

210 ILC Report, supra note 161, Art. 20(f) (i).

211 Id., commentary to Art. 20, para. 14.

212 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–94–1–AR72, para. 129 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996); see afeo Prosecutor v. Akayesu, Appeals Judgment, No. ICTR–96–4, paras. 442–43 (June 1, 2001) [hereinafter Akayesu Appeals Judgment] (arguing in favor of the criminalization of breaches of the Geneva Conventions in situations of internal armed conflict).

213 See Prosecutor v. Delalić, Appeals Judgment, No. IT–96–21–A, para. 140 (Feb. 20, 2001), excerpted in 40 ILM 630 (2001) [hereinafter Čelebici Appeals Judgment] (interpreting its jurisprudence on customary international law as “blurring . . . the distinction between interstate and civil wars as far as human beings are concerned”).

214 Id., para. 160.

215 Tadić, supra note 212, para. 67 (“International humanitarian law governs the conduct of both internal and international armed conflicts. Appellant correctly points out that for there to be a violation of this body of law, there must be an armed conflict.”).

216 For a thorough discussion of the development of crimes against humanity in the case law of the two international tribunals, see Mettraux, supra note 175. Some have argued that crimes against humanity should replace international humanitarian law. Green, L. C., ‘Grave Breaches’ or Crimes Against Humanity? 8 U.S.A.F. Acad. J. Legal Stud. 19 (1997–1998)Google Scholar. However, the distinction between the two branches of international criminal law has not broken down. See Fenrick, William J., Should Crimes Against Humanity Replace War Crimes? 37 Colum. J. Transnat’l L. 767, 784 (1999)Google Scholar (“At the present time, crimes against humanity constitute a distinct and significant part of international criminal law . . .”).

217 See, e.g., Arendt, Hannah, Elchmann in Jerusalem: A Report on the Banality of Evil 255 (Rev. ed. 1964)Google Scholar (discussing the “new and unprecedented” nature of crimes against humanity); id. at 257 (noting that “there was no other crime in the face of which the Nurembergjudges felt so uncomfortable, and which they left in a more tantalizing state of ambiguity”).

218 On the drafting of the crimes against humanity section of the ICC Statute, see Arsanjani, Mahnoush H., The Rome Statute of the International Criminal Court, 93 AJIL 22, 30–31 (1999)Google Scholar.

219 See generally Bassiouni, Specialized Convention, supra note 17.

220 Id. at 479. Although he does not necessarily argue for codification, Fenrick, William, supra note 216, at 785 Google Scholar, calls the content of crimes against humanity “skeletal.”

221 See, e.g., Hwang, Phyllis, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22 Fordham Int’l L.J. 457, 494–504 Google Scholar (discussing the controversy regarding the definition of the actus reus requirements at the Rome Conference).

222 Prosecutor v. Blaškić, Judgment, No. IT–95–14, para. 200 (Mar. 3, 2000) (“A crime against humanity is made” special by the methods employed in its perpetration (the widespread character) or by the context in which these methods must be framed (the systematic character) as well as by the status of the victims (any civilian population).”); Prosecutor v. Rutaganda, Judgment, No. ICTR–96–3–T, para. 66 (Dec. 6, 1999), reprinted in 39 ILM 557 (2000) (holding that for crimes against humanity, “the actus reus must be committed as part of a widespread or systematic attack “ and that “the actus reus must be committed against members of the civilian population”).

223 Chesterman, Simon, An Altogether Different Order: Defining the Elements of Crimes Against Humanity, 10 Duke J. Comp. & Int’l L. 307, 314 (2000)Google Scholar (footnote omitted).

224 Robinson, Darryl, Defining “Crimes against Humanity” at the Rome Conference, 93 AJIL 43, 47 (1999)Google Scholar.

225 Prosecutor v. Akayesu, Judgment, No. ICTR–96–4–T, para. 580 (Sept. 2, 1998) [hereinafter Akayesu Trial Judgment]; see also Prosecutor v. Musema, Judgment, No. ICTR–96–13–T, para. 204 (Jan. 27, 2000) (using same language).

226 Musema, supra note 225, para. 204.

227 Blašhić, supra note 222, para. 203 (footnotes omitted).

228 Chesterman, supra note 223, at 316.

229 Robinson, supra note 224, at 48 (“he plain meaning of the phrase ‘attack directed against any civilian population’ also implies an element of planning or direction . . . ”) ; Chesterman, supra note 223, at 316; see also ICC Statute, supra note 106, Art. 7; Rutaganda, supra note 222, para. 69.

230 Blaškić, supra note 222, para. 204.

231 See, e.g., Rutaganda, supra note 222, para. 68 (“customary international law requires that the attack be either of a widespread or systematic nature and need not be both”).

232 Hwang, supra note 221, at 484.

233 Prosecutor v. Tadić, Opinion and Judgment, No. IT–94–1–T, para. 653 (May 7, 1997), excerpted in 36 ILM 908 (1997) (emphasis added).

234 An examination of the case law of the two international tribunals reveals that “there is nothing in customary’international law which mandates the imposition of an additional requirement that the acts be connected to a policy’or plan.” Mettraux, supra note 175, at 281.

235 See Blaškić, supra note 222, para. 271 (giving the elements of the offense of murder qua crimes against humanity).

236 The Krstić judgment makes the following observation:

Extermination is also widely recognised as a crime against humanity in many international and national instruments. Nevertheless, it has rarely been invoked by national courts and it has not yet been defined by this’Tribunal. The term “extermination” appeared in a number of post-war decisions by the Nuremberg Military Tribunal and the Supreme National Tribunal of Poland. However, although the crime of extermination was alleged, the judgements generally relied on the broader notion of crimes against humanity and did not provide any specific definition of the term “extermination.”

Krstić, supra note 160, para. 492 (footnotes omitted). The ICTR has discussed the crime in a number of its opinions. See, e.g., Akayesu Trial Judgment, supra note 225, paras. 591–92, 735–44; Musema, supra note 225, paras. 217–19; Rutaganda, supra note 222, paras. 82–84. However, in none of these has it discussed the crime in any detail. For a helpful, but somewhat dated, discussion of extermination in the law review literature, see Chesterman, supra note 223, at 334–38.

237 ICC Statute, supra note 106, Art. 7(2) (b).

238 Rutaganda, supra note 222, para. 84.

239 Akayesu Trial Judgment, supra note 225, para. 744.

240 Krstić, supra note 160, para. 501. In Krstić the ICTY insisted that “the definition should be read as meaning the destruction of a numerically significant part of the population concerned.” Id., para. 502.

241 The ICTY distinguishes extermination from genocide on these grounds:

[E]xtermination distinguishes itself from the crime of genocide by the fact that the targeted population does not necessarily have any common national, ethnical, racial or religious characteristic, and that it also covers situations where “some members of a group are killed while others are spared.” For fhis reason, extermination may be retained when the crime is directed against an entire group of individuals even though no discriminatory intent nor intention to destroy the group as such on national, ethnical, racial or religious grounds has been demonstrated; or where the targeted population does not share any common national, ethnical, racial or religious characteristics.

Id., para. 500; see also id., para. 488. The ICTR ruled in its Akayesu and Rutaganda decisions that the perpetrator needs to act with discriminatory intent in order to commit the crime of extermination. However, as the Akayesu appeals chamber observed, this requirement was mandated by the Security Council specifically for the ICTR by its’Statute.” [I]n doing so,” the chamber insisted, “the Security Council did not depart from international humanitarian law nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes . . . ‘‘Akayesu Appeals Judgment, supra note 212, para. 465 (footnote omitted). The Tribunal stated its opinion that “ except’in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient’for all crimes against humanity.” Id., para. 464.

242 Unlike war crimes, crimes against humanity may be committed in the absence of an armed conflict. Akayesu Trial Judgment, supra note 225, para. 565 (“Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”); see also Beth Van, Schaack, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 Colum. J. Transnat’l L. 787, 787 (1999)Google Scholar (concluding that contemporary international law has replaced the war crimes nexus with a revised mens rea requirement and the existence of a wide spread or systematic attack against a civilian population).

243 ICC Statute, supranote 106, Art. 30(1).

244 The Statute states with regard to intent: ” [A] person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence oris aware that it will occur in the ordinary course of events.” Id., Art. 30(2). Part (a) is redundant. Intending a certain consequence is what differentiates the various levels of mens rea. The Statute effectively redefines “intent” in part (b) as “knowingly,” since “is aware that it will occur in the ordinary course of events” is, in the strictest interpretation, “knowingly.” Interpreted more restrictively, it is “recklessly.”

245 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, Art. 6(1), UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

246 Kayishema, supra note 153, para. 207.

247 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, annex, Art. 8(1) (1993), reprinted in 32 ILM 1192 (1993).

248 There are other forms of direct responsibility, notably aiding and abetting liability andjoint enterprise liability, that might appear to be relevant to this discussion. However, both aiding and abetting liability andjoint enterprise’liability require that the perpetrator intend to commit some crime, if not the exact crime for which he or she is charged. See Prosecutor v. Kvočka, Judgment, No. IT–98–30/1, para. 312 (Nov. 2, 2001) (“accused must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that his acts or omissions facilitated the crimes committed through the enterprise in order to be criminally liable as a participant in ajoint criminal enterprise”); Foča, supra note 19, para. 392 (“aider and abettor need not share the mens rea of the principal but he must know of the essential elements of the crime (including the perpetrator’s mens rea) and take the conscious decision to act in the knowledge that he thereby supports the commission’of the crime”).

249 In Blaškić, supra note 222, para. 278, the ICTY trial chamber held that “proof is required that whoever planned, instigated or ordered the commission of a crime possessed the criminal intent, that is, that he directly or indirectly in tended that the crime in question be committed.” Previously, the Tribunal defined “indirect intent” as that “corresponding to the notion of recklessness in common law.” Id., para. 267.

250 Mirjan, Damaška, The Shadow Side of Command Responsibility, 49 Am. J. Comp. L. 455, 455 (2001)Google Scholar (describing superior responsibility as criminal conduct “in which not only a military commander, but also a non-military leader, is held criminally liable for the conduct of his subordinates as if he personally had executed the criminal deed”).

251 Model Penal Code §2.02(2)(c) (1985) (emphasis added).

252 Williams, supra note 163, at 55.

253 “Superior responsibility” is a more inclusive term than “command responsibility.” Command responsibility implies a military hierarchy. Recent developments in international criminal law establish that at least some form of derivative responsibility for acts of subordinates attaches to civilian superiors in a nonmilitary bureaucracy. ICC Statute, supra note 106, Art. 28 (describing two types of superior responsibility, one for military commanders and another for civilian superiors); Kvočka, supra note 248, para. 315 (“[A] civilian leader may incur responsibility in the same way as a military commander, provided that the civilian has effective control over subordinates.”); Kayishema, supranote 153, para. 213. But see Bagilishema, supra note 160, para. 40 (“[T]he broadening of the case-law of command responsibility to include civilians, has proceeded with caution.”).

254 Green, L. C., Command Responsibility in International Humanitarian Law, 5 Transnat’l l. & Contemp. Probs. 319, 321 (1995)Google Scholar.

255 Bantekas, Ilias, The Contemporary Law of Superior Responsibility, 93 AJIL 573, 573 (1999)CrossRefGoogle Scholar.

256 See, e.g., In reYamashita, 327 U.S. 1 (1946); United States v. List, 11 Trials, supra note 173, at 757.

257 U.S. Dep’t of Army, Law of Land Warfare, para. 501 (Field Manual No. 27–10, 1956, Rev. 1976), available at <http://www.adtdl.army.mil/cgi-bin/atdl.dll/fm/27–10/toc.htm> (holding commander responsible if he “has actual knowledge, or should have knowledge . . . that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof”).

258 Protocol I supra note 185, Art. 86 (2) (holding superiors responsible “if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that [a subordinate] was committing or’was going to commit” a breach of the Geneva Conventions or Protocol I and “they did not take all feasible measures within their power to prevent or repress the breach”).

259 See, e.g., Decision of the United States Military Commission at Manila (Dec. 7, 1945), reprinted in The Law of War: A Documentary History 1596, 1597 (Leon Friedman ed., 1972) (“[W]here murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts’of his troops . . .”); see also Mitchell, Andrew D., Failure to Halt, Prevent err Punish: The Doctrine of Command Responsibility’for War Crimes, 22 Sydneyl. Rev. 381, 381 (2000)Google Scholar.

260 Prosecutor v. Aleksovski, Judgment, No. IT–95–14/1, para. 69 (June 25, 1999) (emphasis added).

261 Sonja, Boelaert-Suominen, Prosecuting Superiors for Crimes Committed by Subordinates: A Discussion of the First Significant Case Law Since the Second World War, 41 Va. J. Int’l L. 747, 760 (2001)Google Scholar.

262 Although it refers to the actual knowledge standard and not the “had reason to know,” the ICTY trial chamber’s discussion of superior responsibility in its Aleksovski judgment noted that a superior’s position in a bureaucracy may serve as evidence of that individual’s actual knowledge of malfeasance by subordinates. Aleksovski, supra note 260, para. 80.

263 Blaškić, supra note 222, para. 332.

264 Člebići Appeals Judgment, supra note 213, para. 226 (“The point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so.”).

265 Id., para. 241.

266 Bantekas, supra note 255, at 590.

267 It is arguable that it is actually a gross negligence test. The prosecution need not show that the superior actually acquainted himself with the information that would have put him on notice. Čelebići Appeals Judgment, supra note 213, para. 239. Ilias Bantekas thus argues that “ [t]he ‘reason to know’ standard means that commanders who are in possession of sufficient information to be on notice of subordinate criminal activity cannot escape liability by declaring their ignorance, even if such ignorance of the specific crime is amply established. This standard creates an objective negligence test. . . .” Bantekas, supra note 255, at 590 (footnote omitted).

268 ICC Statute, supra note 106, Art. 28 (holding superior criminally responsible when he or she “either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit [the covered] crimes”) (emphasis added)).

269 See Prosecutor v. Kordić, Judgment, No. IT–95–14/2, para. 371 (Feb. 26, 2001) (characterizing as direct responsibility where it is demonstrated that “a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes”); see also Krstić, supra note 160, para. 605 (stating that “where a commander participates in the commission of a crime through his subordinates, by ‘planning’, ‘instigating’ or ‘ordering’ the commission of the crime, any [indirect] responsibility . . . is subsumed under [direct responsibility]”).

270 Kupreškić, supra note 19, para. 556.

271 See, e.g., The Nature of States Parties’ Obligations (art. 2, para. 1 of the Covenant), General Comment No. 3, UN Doc. E/1991/23, para. 8 (1990) (characterizing the ICESCR as neutral and not predicated on the necessity or desirability of any particular economic system).

272 Africa Watch, supra note 78, at 369 (quoting Pres. Determination No. 85–20, Determination with Respect’to Ethiopia (Sept. 7, 1985)).

273 Id. (quoting Pres. Determination No. 85–20, supra note 272).

274 Id. at 370.

275 Id. at 367.

276 See Power, Samantha, “A Problem From Hell”: America and the Age of Genocide 358–64 (2002)Google Scholar.

277 Customary international law provided for universal jurisdiction over torturers before the Convention came into existence. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

278 Genocide Convention, supra note 149, Art. 1.

279 Power, supra note 276, at 19 (quoting Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin, ch. 1 (unpub. ms., on file at Jewish Institute of Religion, Cincinnati, Ohio)).