Sudan and Gaza are teetering on the brink of man-made famine.
In Sudan, fighting between the Sudanese Armed Forces and the rival Rapid Support Forces has displaced more than 7 million people with 18 million people enduring acute food insecurity, and nearly 5 million of those suffering at emergency levels, according to the World Food Programme.
In Gaza, Israel’s war against Hamas has left 1.1 million people, half the territory’s population, facing “catastrophic” food shortages, according to the Integrated Food Security Phase Classification process.
Using starvation as a method of warfare is a war crime. And while the most urgent need is for immediate access to food and humanitarian aid, the crises in Sudan and Gaza also raise important questions about how to hold those responsible for potential atrocities to account.
Joining the show to discuss the situations in Gaza and Sudan, whether the parties to the conflict might be committing the war crime of starvation of civilians, and what might be done about it, is leading expert Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Tom is a foremost expert on international humanitarian law, including: starvation of civilians, siege warfare directed at a civilian population, and accountability for these acts.
Show Notes:
Sudan and Gaza are teetering on the brink of man-made famine.
In Sudan, fighting between the Sudanese Armed Forces and the rival Rapid Support Forces has displaced more than 7 million people with 18 million people enduring acute food insecurity, and nearly 5 million of those suffering at emergency levels, according to the World Food Programme.
In Gaza, Israel’s war against Hamas has left 1.1 million people, half the territory’s population, facing “catastrophic” food shortages, according to the Integrated Food Security Phase Classification process.
Using starvation as a method of warfare is a war crime. And while the most urgent need is for immediate access to food and humanitarian aid, the crises in Sudan and Gaza also raise important questions about how to hold those responsible for potential atrocities to account.
Joining the show to discuss the situations in Gaza and Sudan, whether the parties to the conflict might be committing the war crime of starvation of civilians, and what might be done about it, is leading expert Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Tom is a foremost expert on international humanitarian law, including: starvation of civilians, siege warfare directed at a civilian population, and accountability for these acts.
Show Notes:
Paras Shah: Sudan and Gaza are teetering on the brink of man-made famine.
In Sudan, fighting between the Sudanese Armed Forces and the rival Rapid Support Forces has displaced more than 7 million people, with 18 million people enduring acute food insecurity, and nearly 5 million of those suffering at emergency levels, according to the World Food Program.
In Gaza, Israel’s war against Hamas has left 1.1 million people — half the territory’s population — facing “catastrophic” food shortages, according to the Integrated Food Security Phase Classification process.
Using starvation as a method of warfare is a war crime, and while the most urgent need is for immediate access to food and humanitarian aid, the crises in Sudan and Gaza also raise important questions about how to hold those responsible for potential atrocities to account.
This is the Just Security Podcast. I’m your host Paras Shah. Co-hosting this episode is Just Security’s Co-Editor-in-Chief, Tess Bridgeman.
Joining the show to discuss the situations in Gaza and Sudan, whether parties to the conflict might be committing the war crime of starvation of civilians, and what might be done about it, is leading expert Tom Dannenbaum.
Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Tom is a foremost expert on international humanitarian law, including starvation of civilians, siege warfare directed at a civilian population, and accountability for these acts.
Hi, Tom, welcome back to the show.
Tom Dannenbaum: Thanks, Paras. Thanks for having me.
Paras: You recently wrote a piece on Just Security called, “Does the ICC Have Jurisdiction Over the Starvation War Crime in Sudan?” and the last time that many listeners may have heard of Sudan was a year ago, when two rival generals began a bloody war in the capital, Khartoum. What has been happening since then? What prompted you to write this piece?
Tom: Right. Well, as you said, the most recent regime, which had been established in a coup in 2021, broke down last year in 2023. And that's now precipitated this armed conflict between the Sudanese Armed Forces on one side and the Rapid Support Forces on the other side. And those two armed forces had been part of that most recent Sudanese regime, and indeed have been aligned for some time. In fact, the RSF, the Rapid Support Forces grew out of the Janjaweed militias that had been the Sudanese state's key agent of atrocity in Darfur in the 2000s. So, there was a long-standing alignment between these two actors, who have now split into an armed conflict over disputes relating to the integration of those armed forces and control over the military and the state.
And that has precipitated a conflict of a high level of intensity that's caused massive displacement. So, 6 and a half million people have been displaced internally, and a further 2 million have been displaced across borders, and it's been marked by credible reports of multiple forms of atrocity. And among those — and this is really the motivation for the piece that you referenced — are various crimes associated with starvation, whether through looting and destruction of food and food infrastructure, obstructing access to food impeding humanitarian delivery, and attacks on — or destruction of — other objects indispensable civilian survival, including medical facilities, and the like. And that's contributed to a context in which 18 million people are enduring acute food insecurity, 5 million of those at emergency levels — which is the last step before famine — and that's particularly acute in Darfur, Khartoum, Kordofan and Jazeera.
And the most recent IPC estimate — Integrated Food Security Phase Classification estimate — is that 4.9 million people — 3.7 million of whom are children under five — are currently acutely malnourished, with the nutrition cluster assessing that about 700,000 children under 5 are suffering severe acute malnutrition, which is the most lethal form of acute malnutrition. So, this is now precipitating a famine in Sudan that could ultimately take over the whole country, depending on how things go from here. But it's certainly going to get worse, because we are entering the lean season, following the season that would otherwise have been the most productive for agriculture in Sudan.
Paras: That really is such a dire situation. You’ve also written about the starvation war crime in relation to the situation in Gaza. What's happening there?
Tom: Right. So, last time we spoke about Gaza was relatively early on in this latest iteration of the conflict. And unfortunately, the situation there has also deteriorated markedly since we last spoke. My view, as you know from our last conversation, is that Israel has adopted the prohibited tactic of starvation of civilians as a method of warfare, really, from very early on in this conflict, and as articulated as early as October 9, when the total siege of Gaza was announced by Defense Minister Yoav Gallant.
After the opening of the Rafah Crossing, and the trickle of aid that followed, the Kerem Shalom Crossing was ultimately opened over 70 days into the conflict. However, other crossings have remained almost entirely closed, and although Israel has repeatedly claimed that there are no longer any restrictions on humanitarian access, that is contradicted by the consensus account articulated by impartial independent humanitarian organizations, such as Action Against Hunger, CARE, the International Rescue Committee, Oxfam, Norwegian Refugee Council, Save the Children, Amnesty, CIVIC, Refugees International, Médecins Sans Frontières, UN agencies, such as UNICEF, FAO, WFP, OHCHR, OCHA, and sources within some of Israel's closest allies, including David Cameron in the United Kingdom, EU officials, including Josep Burrell, the Representative for Foreign Affairs of the European Union, and various US officials, including within the executive branch, all of whom confirm basically without dissenting voice that Israel has been and continues to impede humanitarian delivery in various ways, including restricting access, limiting openings failing to adequately engaged in deconfliction, applying unpredictable or arbitrary criteria for entry. And that's in addition to investigative reporting showing the razing of agricultural land and strikes impacting warehouses, distribution centers, humanitarian actors and people accessing aid.
And so, it's against that backdrop that the Security Council has described the situation as catastrophic in its resolution of last week. It's emphasized the urgent need to expand humanitarian assistance and demanded the lifting of all barriers in that respect. And three days after that Security Council resolution, the International Court of Justice, in the genocide case between South Africa and Israel, used similar language, described famine as setting in amidst what it called the prolonged and widespread deprivation of food and necessities and unprecedented levels of food insecurity, and unanimously ordered Israel to take all necessary and effective measures to ensure, in full cooperation with the United Nations, the unhindered provision at scale of urgently needed food, water and other essentials. So, there's a clear consensus across all actors — other than the Israeli government itself — that there is ongoing deprivation of objects indispensable to civilian survival to the population in Gaza.
And that's reflected in the starvation crisis in Gaza, where the reports of people boiling weeds and eating animal feed, where 1.1 million people in a population of just over 2 million people are projected to be at catastrophic levels of food insecurity — in other words, famine conditions between now in July, with most of Northern Gaza already at that point, and the rest of Gaza approaching it quickly. So, it's a catastrophic situation. And in my view, it continues to be the result of starvation of civilians as a method of warfare, albeit in a form that is not quite so straightforward as its initial articulation on October 9.
Tess: So, Tom, it is absolutely a dire situation in each of these places. The really tragic levels of food insecurity, malnutrition, and indeed, famine being underway, as you put it, and as others have recently been putting it in both places, is quite striking, given as you've written in each of these places, this is a human-made catastrophe. And so, that's what I want to ask you to give us some more context for right now. What is the difference between the kind of, you know, incidental effects on a civilian population, say, in the course of armed conflict, and starvation as a war crime? What are the elements of the crime, perhaps to begin? And then we can maybe talk about what are some of the facts on the ground that you would look at to see whether the crime is being committed because, of course, parties to a conflict don't generally step forward and say, our next tactic is to starve the civilian population. Maybe for starters, what are the elements of the crime, and what do we look for in determining whether we think it's been committed?
Tom: My view is that the crime attaches when there's deliberate deprivation of objects indispensable to civilian survival, either with the purpose of sustenance denial to a population that is civilian in character, i.e., at the aggregate level, or for any other purpose where civilian starvation is a virtual certainty. And that dual thresholds is informed in part by the meaning of intent in the International Criminal Court statute, which includes both direct intent — in other words, purpose of intent, which I'm identifying here through the concept of purpose of sustenance, denial — or oblique intent — in other words, intent where there's a virtual certainty that a consequence will arise — which I'm identifying here through deprivation for any purposes other than sustenance denial, where civilian salvation is a virtual certainty.
And so, those are the things that I'm specifically looking for. And the distinction between them is important, because the first form of the crime recognizes the wrongfulness of the practice, and the conduct before the momentum of famine becomes unstoppable — which it now is in Gaza, and very likely in Sudan — whereas the second is important because it recognizes that a certain point, the civilian impact is so great as to preclude continued deprivation, in any form, and for any reason. And so, it's not contingent on specifying that there is a policy of sustenance denial, but is instead implicit in the fact that there's ongoing deprivation, notwithstanding the fact that famine at that point has taken hold.
Tess: So, Tom, if you can talk us through a situation, for example, because we're hearing some argue that if a militia force, you know, an enemy battalion, is located in a village preparing for an attack, that it should be perfectly legitimate to ensure that their sustenance is cut off, that that's an age-old method of warfare. What is it that makes an area retain civilian character despite the presence of those enemy forces? Can you give us a little bit more granularity on how to think about that in today's conflicts, especially where you may have enemy forces who are attempting to meld into the civilian population, who are not wearing insignia or uniforms, or otherwise feigning civilian status, even? How do you think about that when you're thinking about this intent element, but also the idea that you're talking about, of a civilian population retaining its character despite the presence of combatants?
Tom: Well, I think the starting point is that the language that the ICTY used when it was looking at these kinds of situations, and one of the situations that was examined was this siege of Sarajevo, in the situation of Sarajevo, and whether the sniping and shelling against the population of Sarajevo was directed at the civilian population, notwithstanding the presence of members of the armed forces of Bosnia and Herzegovina in that context.
The language that it used was predominantly civilian. Of course, as with any legal concept, we'll get into debates at the margins of that category. But I think in the context that we're currently discussing — whether it's in Sudan in the various areas, with respect to which there has been impediment of humanitarian access, or whether it's in the context of Gaza — the populations that are affected are overwhelmingly civilian, it's not close. And so one way of thinking about this is by transposing this discussion to the question of kinetic attacks, and thinking about the point at which it would be defensible to articulate the attack as on a military objective, and against combatants, with civilians classified as collateral damage, versus on an area that was indiscriminately targeted, that included a combination of military objectives and civilian objects and persons, or on a population that was civilian in aggregate. And I think nobody would argue that it would be defensible to engage in the carpet bombing of Gaza with no reference to who is a civilian and who is a combatant on the grounds that it's difficult to distinguish between the civilians and combatants, and in targeting the population, we're simply trying to attack the combatants within it.
This is clearly a civilian population at the aggregate level. And so, to do that would be straightforwardly prohibited as an attack on a civilian population, which would be both a war crime and a crime against humanity. And so, I think in the cases that we're discussing right now, it's not a close call. But of course, on that particular question of at what point is a population a civilian population, versus a population that is predominately composed of combatants with some civilians in it, there will be marginal cases. I just don't think we're proximate to those margins in the current discussion.
And there's perhaps one thing that's worth adding on here, which is the structure of the prohibition of starvation of civilians as a method of warfare, which is specified through the protection of objects indispensable to civilian survival in Article 54 of Additional Protocol 1, which specifies that various forms of deprivation of objects indispensable to civilian survival are prohibited either if done for sustenance denial — including sustenance denial to combatants, unless combatants in that context are the only population drawing sustenance from those objects — or if done for any other reason where that deprivation is expected to cause civilian starvation or forced movement. So, on that framework, it's actually an even more demanding test — that it's not just where the target is the civilian population, but where civilians, and in any numbers, draw sustenance from those objects.
But returning to the war crime, if one were to understand intentionally starving civilians as a method of warfare to require some form of starvation targeted at civilians or civilian population, that's where I think this concept of the civilian population retaining a civilian character — notwithstanding the presence of combatants — becomes important. And I think that classification of the populations in question in the areas of Sudan that have been affected by this tactic and in Gaza are straightforwardly civilian.
Tess: And Tom, do you think we've seen that to date with respect to pressure being applied on any of the parties to the conflict? Is this rhetoric that is being employed by those who are seeking to leverage the parties and change their actions? Or are we not yet at the stage where these kinds of terms are being used?
Tom: Well, certainly some actors are using this language. So, language that is approximate to the criminal law, language such as starvation as a weapon of war — which is more or less the same as starvation of civilians as a method of warfare — has been used by various actors in this context, including, for example, I mentioned earlier, Josep Burrell. The European Union has specifically used that kind of language.
But whether it's having an effect, I think, is harder to say. There have, of course, as I mentioned earlier, been points at which additional aid has been allowed in — in the context of Gaza, the opening of the Kerem Shalom Crossing and those kinds of steps — but it's not yet been at the level that would be necessary to avert this human made famine. And so, inevitably, whether we're talking about change through expression and normative internalization, or whether we're talking about change through political leverage or deterrence, whether social or otherwise, it's imperfect. And right now, it's difficult to be entirely optimistic.
But I absolutely think it's critical to be framing this issue in those terms, and not to cease in trying to assert pressure in those respects. And it can also, I think, be an important tool in that respect in mobilizing within states — like the United States, like the United Kingdom, that have some influence in this particular context — to motivate political leaders in those states to push harder on this, and exercise the leverage that they have in much more robust ways than they have thus far.
Paras: So, Tom, right now, the focus has rightly largely been on getting humanitarian aid into these places, and that's a focus of your recent piece. But why is it also important in this moment to talk about individual criminal responsibility as well?
Tom: It's absolutely not the only conversation we should be having on this, in this moment. We should be seeking to use every possible lever in every domain of interaction and political engagement, whether that's ICJ processes, processes at the UN Security Council, domestic political pressure in the states in question, or external states with leverage over them.
But criminal responsibility does have an important role to play in this context. Expressively, I think it's significant in helping to change the narrative around starvation in war, away from it being considered an inevitable collateral consequence of fighting and towards recognizing that is often and is, in these particular cases, the product of belligerents’ illegal choices regarding how to conduct their war.
And it can also express condemnation for the infliction of the individually and societally torturous suffering, destruction and fragmentation that arises from that practice. It can also be a particularly potent focal point for mobilizing against the practice, whether that's mobilization by those affected, those within the states engaged in it, those within third states or international organizations with leverage over those states that are engaged in the practice, and indeed, among humanitarian actors.
And so through each of those mechanisms, that can become a point of either normative internalization within militaries, or social deterrence and leverage where it's not yet been internalized by the actors in question. So, it's partly about changing the framing, identifying this as a wrongful practice as opposed to an inevitable consequence of war, and then using that to provide momentum around political mobilization and enforcement.
Tess: So, your recent piece on Sudan raised a lot of novel issues. And I think some thoughtful ways to think through them that might be new for some of our listeners, and even those who have studied the issue fairly closely, so I was hoping we could talk through some of those issues in turn. First, starting with the International Criminal Court, the ICC as a potential venue for trying starvation of civilians as a method of warfare in the Sudan context. But just kind of zooming out and backing up, can you remind us how Sudan got to the ICC at all, since it is not a State party, and why we would even be talking about the ICC as a potential jurisdiction for trying these crimes in the Sudan context?
Tom: Well as your question implies, ordinarily, ICC jurisdiction is predicated on the alleged crimes being perpetrated either on the territory of a state party, or by the nationals of a state party. And that's clearly not the case in Sudan. But there is one exception to that, which is when the Security Council refers a situation to the courts — and it's done so twice, once in the context of Darfur, which is within Sudan, in 2005, and once in the context of Libya in 2011 — and in that referral, in the context of Sudan, that was Resolution 1593, which referred the situation in Darfur in response to what at the time had been a key focus of transnational mobilization relating to what was widely viewed as a genocide, which was a crime that was later included in the International Criminal Court arrest warrant for former Sudanese President Omar Al Bashir, who president at the time of the arrest warrant.
And that resolution was, in some sense, remarkable, because it occurred during the Bush administration, which had been extremely hostile to the International Criminal Court, as reflected in the so-called Hague Invasion Act and the proliferation of Article 98 Agreements, which were designed to preclude transfer of US persons to the International Criminal Court. But the Bush administration abstained from the ICC referral, in part under the pressure of advocacy, relating to the situation in Darfur. So, that referral has underpinned ICC jurisdiction in the context of Darfur, at least, within Sudan. And there's now the question of whether it continues to have effect today, although the pretty clear position of the International Criminal Court Prosecutor, Karim Khan, is that it does continue to have effect today, almost 20 years on from that initial referral.
Tom: So, let's break that down. We have the question of, does a 2005 referral with respect to genocide, and specifically in the region of Darfur, have applicability today in 2024 in what is clearly a new armed conflict — although of course, with some repeat characters — extending to regions beyond but including Darfur, and with respect to a different crime than the one that was of most serious concern at the time of the 2005 referral. Although it was, of course, a bit broader than that. Can you maybe talk us through those in turn, starting with a temporal issue of why this referral would still be good 20 years on?
Tom: The puzzling aspect of this is that neither the ICC statute nor Security Council Resolution 1593 specify a temporal limit either in the first instance generally to Security Council referrals, or in second instance, specifically with respect to this referral in terms of their effect in underpinning ICC jurisdiction. But as you said, with this resolution now almost two decades old, it does seem as though it's time to start asking that question. And on the one hand, as you implied, that conflict in Darfur has never been fully resolved, and the current SAF-RSF conflict, particularly in Darfur, and the ongoing atrocities involve many of the same actors, including, in particular, Janjaweed, who are now formed as the RSF, committing some similar atrocities in targeting some of the same indigenous groups, as was the case in the 2000s.
But on the other hand, the SAF-RSF conflict is a distinct conflict from the Darfur conflict, as you said. It's not limited to Darfur. And given that the Security Council referral grants the court an exceptional authority, an authority that it wouldn't have absent this particular kind of referral, I think it's important that we try to gain some clarity about when that exceptional authority ends. Right now, we just don't have that clarity. My view is that the court will find that it does continue to have jurisdiction, in part because of the long-standing insecurity and conflict in Darfur, and in part because we have repeat actors involved in crimes against some of the same populations that were affected by that initial conflict precipitating the referral.
But I'd be surprised if it found that it had jurisdiction outside of the territorial region of Darfur within Sudan, because the Security Council referral is specific to Darfur. And in previous cases, the court has relied on the fact of the crimes in question occurring in Darfur in asserting its jurisdiction. And so, I would expect that that might pose more of a limit in this particular context. But I do think that the temporal question, independent of the territorial scope, is something that really needs to be clarified, and that we should be at least somewhat uneasy about the prospect of forever referrals and Security Council resolutions within the ICC framework.
Tess: We can come back to that forever referrals problem in a moment, but for now, for teasing through how this crime might, in fact, make its way before the ICC, if it were to do so — you've talked us through the temporal and the territorial scope issues. Then we have, what you identify in your piece, as the biggest issue, which is the material jurisdiction, and the fact, of course, that this crime that we're talking about now is one that was added by amendment with respect to a conflict like this one. So, can you talk us through the material scope issue? What is the issue? What is the problem? And you have a fairly elegant set of analyses on how that might be overcome, but let's start first with the problem.
Tom: Yeah, so the problem is that, whereas most of the ICC statute crimes have been in place from the beginning from 1998, and the entry into force in 2002, and therefore predating the Security Council referral applicable to Darfur, the salvation war crime was incorporated for non-international armed conflicts only by an amendment in 2019, which is through provision 8(2)(e)(19), as the new war crimes provision for salvation of civilians as a method of warfare in non-international armed conflicts. It had always been in place for international armed conflicts, but not for non-international armed conflicts. And that amendment only entered into force in October of 2021. And that's over a decade and a half after that initial Darfur referral. So, it's a crime that has come into place within the ICC framework long after the specific mechanism that provided for ICC jurisdiction in the context of Darfur.
And the reason that poses a particular challenge is that ICC amendments enter into force on the basis of the ratification of those amendments, when we're talking about substantive amendments to the crimes applicable under the ICC framework. And so, a state would ordinarily generate jurisdiction over its territory and nationals through ratifying this specific amendment. If an amendment predates the Security Council referral, a fairly strong case can be made that the referral encompasses all of the crimes in the statutes at that moment, whether they were crimes initially within the statute or crime subject to the referral, because, after all, the referral itself is creating jurisdiction in the absence of state consent.
But there's something a little bit more challenging about applying that when the amendments come into place subsequent to the referral. So, yes, the referral creates ICC jurisdiction in the absence of state consent. But it creates ICC jurisdiction in the absence of state consent on the basis of the statute in that moment. And so, it's at least an open question whether that referral would also include automatically accumulating material jurisdiction such that as amendments come in, they are essentially incorporated into this substantive scope of the crimes that are applicable under the referral, as well as being applicable to states that ratified the amendment.
Tess: So, one way to think about this might be that if the situation was referred and the UN Security Council is creating the jurisdictional hook absent state consent, why not extend that to any future amendment? If we've already bypassed consent, why would we be looking for it with respect to amendments?
Tom: Yeah, I think that's correct, that that's the route that one would take to determine that the amendments would be applicable notwithstanding having occurred after the referral. And just to be clear, they would only be applicable to crimes occurring after the amendment. The principle of legality within the ICC framework would preclude their retroactive application to events occurring prior to the amendments.
But precisely as you suggest, given that Security Council referrals are ordinarily, rather, already outside the domain of state consent-generated jurisdiction, one might think that this is just another manifestation of that. My own view is that that might well be the route the court takes. But, I've always been somewhat uncomfortable with the exceptional nature of Security Council-referred situations within the ICC framework, not least because three of the states that have unilateral veto authority over whether those referrals go ahead are themselves not party to the ICC system and therefore exercise this control over referrals that create ICC jurisdiction over the nationals of non-state parties when they themselves are in precisely that category. And so, that background concern, I think, also animates my concern about then seeing Security Council-referred situations as not just exceptional in the first instance, but exceptional and multiple other respects insofar as they can extend into the future without any prospect of withdrawal, and that they can accumulate material jurisdiction automatically as amendments are incorporated into the ICC statute in a way that is unlike ICC jurisdiction in any other context.
And so, although I think that the analysis that you just articulated and that I elaborated a little bit in the piece is quite possibly going to prevail at the court, I think we ought to be concerned about the legitimacy of an institution when this kind of exceptional authority is under the political control of states that have themselves not subjected themselves to ICC authority. And that concern is exacerbated the broader the exception. And so, the more elements of that exceptionality are incorporated.
Tess: It's a really helpful framing, Tom, to think about not only the technical legalities of the issue — can an argument be made, and in fact, can have a fairly reasonable argument be made — that, in fact, this jurisdictional hook, that the UN Security Council creating jurisdiction, ought to suffice and could be seen to bypass consent of the state in this situation, even with respect to amendment crimes, notwithstanding that there's a legitimacy gap that is created by virtue of the way that these institutions are structured. And it's not the only legitimacy gap that you speak of in your piece. There's obviously a long history of the ICC dealings with Sudan, with other, you know, even state parties who of course, have been caught up in issues between the ICC and Sudan. Can you just give us a brief reflection on how that might play in with respect to any current crimes that might be brought before the ICC on the basis of that old referral?
Tom: Well, in some sense, this referral is the genesis of one of the most significant legitimacy crises that the ICC is faced, because the arrest warrant for Omar Al Bashir was determined by the African Union collectively and many states to be in contradiction to their obligations relating to his head of state's immunity. And so, a number of states refused to arrest him notwithstanding the ICC arrest warrant, and the International Criminal Court repeatedly rejected those refusals, or determined that those refusals were in violation of those state party's obligations under the ICC statutes. And ultimately, the appeals chamber affirmed that position, but it was a point of tension for a long period of time. And it was one of the motivating factors — although clearly not the only motivating factor — behind the African Union's withdrawal strategy, which ultimately didn't really come to fruition in terms of mass withdrawals, but was emblematic of the degree to which there was a real crisis of legitimacy at the court.
And so, it's not clear to me exactly what that's going to mean for how states respond to ACC action in this current context. But it does indicate that the ICC’s legitimacy is not guaranteed. It has already been tested. And I think it's most likely to be tested in Security Council-referred situations because they involve jurisdiction without state consent, and the more elements we layer on to those referrals that go beyond even the most basic override of state consent through extending them temporarily, through including the accumulation of material jurisdiction, the more problematic, I think, that's likely to be in the long run.
In the piece, I suggest one way of responding to this, given the imperative for accountability in this current context in Sudan, and that would be for state parties to collectively refer the situation to the courts, and thereby express their own view of its legitimacy and acting in this particular context. Technically, that wouldn't be a necessary step. In fact, it wouldn't change the jurisdiction of the courts at all, because state parties can only refer situations where the ICC has jurisdiction. And so ordinarily, it's precisely when we're dealing with crimes on state party territory or by state party nationals. But state parties have collectively referred situations in Venezuela, in Palestine, and in Ukraine, in context in which the multiple referrals weren't necessary. All you need is one state party to refer. But they've done it collectively and in significant numbers, in part to express their affirmation of the court's legitimacy and authority in those contexts.
And so, they could also do that here. There's no bar on them doing it in this context, given the court's jurisdiction in light of the Security Council referral, and doing it might give the court an additional basis for asserting legitimacy in this context, notwithstanding the fact that it would technically not be legally necessary to do that.
Tess: They would be solving for the legitimacy gap as opposed to a technical shortfall of jurisdiction. If you don't get that kind of coalition of states coming forward for referral, or if, between the, you know, the other legitimacy issues that that you've already gone through and that kind of technical strain, if you will, on the initial referral are just all too much to bear — where else could we look to see the actors involved tried, prosecuted for these crimes? The ICC is, obviously, often the first thing the international community thinks about when we are worried about international crimes in the context of armed conflict. But what else should we be thinking about in this particular case, given all the complications you've described?
Tom: Well, one of the motivations for the incorporation of Article 8(2)(e)(19), the non-international armed conflict war crime, the starvation of civilians as a method of warfare, was the view among the states that motivated that process, that this was already a customary international crime. And so, it was bringing the statute into conformity with that and harmonizing across international and non-international armed conflicts in response to the customary criminality of this practice in both.
So, given that, there is a strong basis for asserting universal jurisdiction over this crime, and many states included in their war crimes codes. And there would also be a strong basis for including it in the statute of any hybrid or ad hoc tribunal that might be created in this context. And given that I think there is a genuine difficulty with extending ICC territorial jurisdiction beyond Darfur given the specific language of the 2005 referral, it might be necessary to pursue that kind of option, a hybrid call to some kind of alternative ad hoc institution, so as to cover the full scope of criminality in this conflict and not exclusively be focused on war crimes, crimes against humanity, and possibly genocide in the context of Darfur.
Of course, that could be also solved by an additional Security Council referral, although I think that's relatively unlikely in the current climate in the current posture of States vis-à-vis the International Criminal Court, particularly given the open arrest warrant for the Russian President Vladimir Putin. So, there are various options. I think universal jurisdiction or an ad hoc or hybrid tribunal are most likely, and they may be necessary as a matter of territorial jurisdiction covering the full scope of war crimes and other international crimes in Sudan. But I think they might also be appropriate for even those crimes that occur within Darfur, given some of the concerns relating to material jurisdiction and temporal jurisdiction in this particular context of the ICC.
Paras: Thanks for that very helpful overview. Tom, as we look forward, and we track these issues, what should we look for next? What's the next thing that you're keeping on your radar?
Tom: The thing that I really want to see is more immediate and intense pressure from those states that have leverage over the various actors in both of the conflicts that we've been discussing, whether it's Gaza or Sudan, to cause the parties in question to cease using starvation of civilians as a method of warfare, and to allow full unfettered humanitarian access to the populations in extreme need in both of those contexts, recognizing that at this point, the momentum of famine is underway. It's not a momentum that can simply be stopped. It will take a really profound and concerted effort to slow it and then reverse it. And so, at this point, it's really about those external actors seeking to use whatever leverage they can to try and perform precisely that extremely difficult task of slowing and then reversing the momentum of catastrophic food insecurity in both of these contexts.
Tess: Tom, thanks so much for talking this over with us today. It's, as you said, right from the outset, catastrophic set of events that we're witnessing. Thank you for bringing this framing to it and helping us think about modes of accountability that might be used even as leverage on the front end.
Is there anything else that you wanted to add to this discussion before we close out today?
Tom: Well, the only thing I would add beyond what I just said, is that the fact that we're having this conversation in relation to both Gaza and Sudan at this point, is itself representative of a catastrophic failure of not just the parties to the conflict, but also all of those states that have some relation to it. And what we really need to do, I think, is better forestall these outcomes by focusing attention on the prohibited acts of deprivation in the moment in which they are occurring, and from the beginning of their implementation, as opposed to waiting for the momentum of famine to build and the food security situation to deteriorate before that pressure is exerted, and before identifying the wrongfulness of the practice that is being undertaken.
And part of why I wrote that piece on Gaza so early in the conflict was precisely with a view to raising the alarm about this before it reached the point at which it is now, and that is, for me, it's really important that as an international community, we do much better at responding at the early stage and insisting on humanitarian access from the beginning, rather than waiting to the point at which children are dying of starvation.
Tess: Extremely well said Tom, and thank you for being such a clear and cogent and thoughtful voice, as you said right from the beginning on this set of issues. Thank you again for your thoughtful analysis, for taking the time to talk it through with us today. We appreciate it.
Thanks very much, Tess, and thank you, Paras.
Paras: Thank you, Tom.
This episode was co-hosted and produced by me, Paras Shah, and Tess Bridgeman with help from Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to Tom Dannenbaum. You can read all of Just Security’s coverage of Gaza and Sudan, including Tom’s analysis on the starvation war crime, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.