Prosecuting Avoidable Famine as a Crime Against Humanity
Under what factual circumstances is it a crime against humanity when widespread deaths result from starvation?
Under what factual circumstances is it a crime against humanity when widespread deaths result from starvation?
In analyzing the question I want to make several distinctions clear from the beginning. First, there can be little doubt that murder of an individual by means of withholding nourishment when that person is in someone’s custody is criminal, and when other considerations are present may constitute a crime against humanity. In this same category, I include for analytical purposes, genocide by means of deliberate starvation of an ethnic group. Second, I am assuming the usual requirement of intent applies; in short, the person accused must reasonably foresee the nature and consequences of his acts.
I will also note at this point that in order to prosecute most crimes against humanity they must be recognizable as such under principles of customary international law. I will address this somewhat technical aspect at the end of this paper.
The question presents important issues for jurisprudence and political philosophy regarding the relationship of the citizen and the state. But as I will argue, it is the facts that are crucial – not an unusual circumstance in the criminal courts.
Having worked there for almost fifteen years, I am most familiar with the case against the Khmer Rouge in Cambodia. Accordingly, I will use those circumstances as my primary source of examples with allusion to others.
Population Losses: Two Approaches
With these preliminaries in mind, let me outline the situation in Cambodia. In January 1979, after ruling for nearly four years beginning April 1975, the Khmer Rouge were toppled by combined Cambodian and Vietnamese military forces. It was not long before reports emerged regarding widespread deaths1 which had occurred during the Khmer Rouge reign. Initially, the number was placed as high as three million dead. Today, the most often cited figure is 1.7 million. How this number, and others like it, are derived is central to the argument presented by this paper. For that reason I will review it in some detail, using the demographic analysis of Ben Kiernan, set forth in his 1996 book, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge 1975-19792.
Kiernan’s approach combines two strategies. The first openly relies upon an extrapolation from surveys of identifiable populations. The second depends upon simple arithmetic computations of gross population figures, with the number of Cambodians alive in 1979 subtracted from the number living in 1975. The difference between the two amounts is considered to represent the number of deaths “attributable to the Khmer Rouge.” The relevance of population to the question presented in this paper is that when dealing with a broad-scale phenomenon such as famine, a social metric is required by the very nature of the criminal charge, rather than specific accounts of starvation standing alone. The broad policy-making function of the accused individuals is itself the subject of criminal investigation.
After forty-four months of Khmer Rouge rule, Cambodian society was in disarray. Many people had been forcibly transferred from their original villages due to the Khmer Rouge agrarian policy and their desire to radically remake society. With the outbreak of open warfare with Vietnam, large numbers of refugees sought to escape hostilities by moving to safer locales, particularly along the Thai-Cambodian border where the United Nations set up camps. It was under these difficult conditions that Kiernan and his colleagues conducted interviews. The process consisted of efforts to ascertain from family members themselves numbers lost in the immediately preceding years under the Khmer Rouge. The results were then projected onto the Cambodian population as a whole.
The most salient demographic issues in this approach concern the samples and the subjectivity of the sources. First, there is no suggestion that the samples, those who were interviewed, were randomly chosen. To the contrary, refugee populations are the antithesis of a randomly selected sample; they are hardly a cross-section of the Cambodian population as a whole. However, Cambodia does offer a rare instance where virtually the entire nation was uprooted3 and sent either from cities to the countryside or away from their villages of birth4. Second, when the dust of the Khmer Rouge years had barely settled, one would imagine that any tendency toward animus against the Khmer Rouge would be high, with the consequence that number of family members lost would be exaggerated. Moreover, there is nothing in Kiernan’s described methodology5, suggesting that he adjusted his findings to account for either of these factors.
The before-and-after arithmetical method seems to offer a preferable standard, except that neither a reliable before, nor after, population number for Cambodia appears to be available – and both are absolutely necessary. An accurate census for Cambodia in 1975 is almost unthinkable, since the prior decade had been one of continual internal warfare: from President Nixon’s notorious Cambodian invasion in 1970, followed by years of intensive carpet-bombing, to Cambodian king Norodom Sihanouk’s, violent suppression of uprisings for at least ten years before his overthrow by General Lon Nol in 19706, the year of the U.S. invasion. After their ouster from Phnom Penh in 19797, large portions of the country remained under effective Khmer Rouge control until 1998. That year, the Khmer Rouge movement fundamentally dissolved and the central Phnom Penh government extended its reach country-wide for the first time since its formation in1993, when United Nations-sponsored8 elections took place without Khmer Rouge participation9. Conducting a reliable census, either before April 1975, or soon after January 1979, seems dubious. Accordingly, the census figures used by Kiernan must to be viewed as informed estimates at best.
But let’s not be too harsh in judging Kiernan and his colleagues. Under very difficult circumstances they devised a research approach, and went about solving the problem. It may not satisfy academic standards for sound social science but this is a real-world predicament recognizing no obligation to submit to ideal abstract rules.
Finally, it seems inevitable that uncertainty comparable to that presented in reckoning Cambodia’s population losses will be found whenever a move is instigated to prosecute someone for an alleged crime against humanity based on widespread national famine.
The “Net Worth Prosecution” Analogy
An inviting prosecutorial analogy here is that embraced by federal prosecutors pursuing a tax evasion case: “net-worth prosecution.” In such a case, the defendant reports an income of $30,000 per year, but lives a lavish lifestyle with mansions, yachts, and expensive vacations in the Bahamas. This evidence alone constitutes a prima facie case. Effectively, the burden of explaining the incongruity between reported income and expenditures shifts to the defendant. It matters not whether the income was legally or illegally gained10.
Establishing the Famine Narrative
Initially, at least, reports of starvation among a population are likely to be anecdotal – precisely the situation in Cambodia. In early 1979, the Cambodian authorities that ousted the Khmer Rouge from Phnom Penh, aided by their Vietnamese allies, began to prepare a set of charges targeting two Khmer Rouge leaders, Pol Pot and Ieng Sary11. In part, this effort focused on gathering scores of affidavits from people describing their suffering under the rule of the Khmer Rouge. Out of these statements several patterns began to reveal themselves. A common theme involved reported transfers of populations from ancestral home areas to distant Cambodian provinces. Enforced communal living and strenuous labor in large-scale rice-growing projects were typical fates following such relocations.
As a result of the massive population transfers, families were fragmented12. This struck the previously urban sectors hardest, since it was Khmer Rouge policy to transform so-called parasitic city-dwellers into productive components13 of their new agriculture-first vision. Understandably, city-dwellers were both less able to withstand the newly enforced rigors of farm labor, and less able to apply these labors in the most effective manner; many possessed little skill when it came to cultivating paddy soil.
When the process of interviewing commenced survivors more often than not simply stated that they had no idea what had happened to a certain family member. He or she had simply been taken away, often forcibly or through some ruse, and never seen or heard from again. Some, of course, were later located, as the task of sorting out dislocated relatives proceeded with United Nations assistance, but for vast numbers of individuals, the “missing” status proved permanent.
It should be noted that measuring the number of deaths for certain sectors of the Cambodian populace known to have been specifically singled out14 by the Khmer Rouge for maltreatment, or even elimination, such as the Vietnamese minority, the Moslem Chams, and Buddhist monks15, may be less problematic than is the case for the general Cambodian population. Their numbers were smaller, they were more geographically segregated, and for many villages there was an attempt at reconstituting previously dispersed and decimated communities.
Using collected oral statements, Kiernan and others calculated an average number of persons lost from identified families, totaled the numbers of families, and then extrapolated gross numbers of deaths nationally. Since the numbers produced from this method were not widely divergent from the “before-and-after” census figures, the two methods were viewed as corroborative. In fact, since the early 1990s journalists and most scholars have reiterated Kiernan’s Khmer Rouge death tolls absent any critical appraisal. My own stance is simply to state that vast numbers of deaths are attributable to the Khmer Rouge and that it is not essential to the process of assessing culpability to come up with a precise gross figure16.
Conditions of communal life included sparse rations and concomitant decline in health. Gradually, deaths from malnutrition became increasingly common. Because skilled health professionals were targeted for especially brutal treatment as representatives of the urban elite an absence of trained medical personnel and medicines aggravated the problem. Additionally, affidavits reported that use of traditional Khmer remedies gathered from the countryside was also prohibited by the authorities and severely punished.
A background fact of great relevance to our question regarding Cambodia is that this region of Southeast Asia has always been regarded as extremely productive for growing rice, a Cambodia staple. Indeed, even during prior years marked by great turmoil, Cambodia continued to be a rice-exporter, without reported harm to its ability to feed its own population. Over millennia, an efficient system of paddy rice cropping had evolved in coordination with predictable arrival of the monsoons. The result was an agricultural cycle integrated with a series of public and religious festivals, the most famous of which is the so-called Milk Festival with the royal personage of the King presiding over the flotilla. During the Milk Festival17 the very flow of the Basaac River reverses course, filling the Tonle Sap, a huge natural reservoir in the middle of the country. This extraordinary event has a perfectly natural explanation involving the inability of the Mekong River to handle the enormous volume of water produced by the spring melt of the Himalayan snows. But to the Khmer population the needed irrigation waters produced by the phenomenon was nothing short of miraculous, an annual sign that providence again favored the survival of the race.
In a very genuine sense, it was this time-honored system that the Khmer Rouge’s draconian plan to remake Cambodian society sought to overturn.
RELATIONSHIP BETWEEN STATE AND INDIVIDUAL
At this juncture we find ourselves flush against questions of policy implicating the relationship of the state to its members. Clearly during the time in question, governments of whatever stripe – socialist, laissez-faire capitalist, or some combination thereof – possessed immense authority to regulate economic affairs, including agricultural production. When policy is sound and execution is effective, bellies will be filled and no issues of possible crimes against humanity arise. But when policy is flawed and/or execution goes awry, then in the most extreme instances, catastrophic consequences may ensue in the form of famine.
Does the foregoing statement, however, assume an affirmative mandate between state and citizen obliging the latter to insure the feeding of the former? This question, however, need not be answered for the Khmer Rouge, who stepped forward and acted affirmatively with a heavy and dictatorial hand. Moreover, it appears objectively clear that where conditions render food production uncertain, for example war, drought, or other natural causal agency, the level of responsibility may increase proportionally. These same circumstances may, however, create an urgency that makes prudent policy options less clear.
Just such an exigency was proposed, for example, by the Khmer Rouge leadership following triumph of the revolutionary forces in April 1975 to justify the hardships suffered by the population of Phnom Penh when it was driven at gunpoint from the city. The explanation that the evacuation was necessary because of anticipated U.S. bombing proved to be pretextual, however, when the capital remained a virtual ghost town for almost four years. Although the Khmer Rouge leadership has never been particularly forthcoming regarding rationales for its policies, especially those most draconian in character, some early apologists articulated a theory that the radical restructure of Cambodian agriculture under the regime was needed to avoid collapse of the rice-based economy.
The State as “Guarantor”
The notion that the state stands as guarantor of national food supplies, as seems to be assumed in a prosecution premised along the lines suggested, is also subject to serious question. In the United States Supreme Court decision DeShaney v. Winnebago County Social Services18, Chief Justice Rehnquist declared unambiguously that the “due process clause” of the U.S. Constitution, since it is subsumed within a government of limited powers, does not signify a state-guarantor of fundamental human needs. The facts of that case involved harm suffered by a juvenile at the hands of a parent known by the country social services department to be abusive. Nonetheless, the majority decided that since the child was not in custody, the county could not be held monetarily liable to the injured child for a “due process” civil rights violation19. Moreover, to the extent that some affirmative command responsibility may be argued from In re Yamashita20, it has been subjected to serious scholarly criticism21, and, additionally, may be distinguishable since the holding involved a Japanese military commander (not a peace-time civilian leader) exercising wartime authority over occupied Manila.
Naturally, each of history’s famines has its own unique set of causal factors. Nonetheless, for purposes of potential criminal charging as crimes against humanity some comparisons may be in order. In the 1990s, a catastrophic famine reportedly occurred in North Korea, resulting in deaths some estimate as high as three million. The consensus among outside observers was that the starvation causing the massive number of deaths was attributable in large measure to mismanagement22 of national agricultural policy by the nation’s leadership, specifically Kim-Il-Sung at the pinnacle of power. This was the period of disintegration of the former Soviet Bloc, and North Korea could no longer look to its foremost ally for assistance. Severe weather – first flooding, then drought – also conspired to cause drastic decreases in domestic production of staples such as rice and wheat, but perhaps most telling of all was the pride of North Korean leaders, which delayed requests for international emergency relief. Kim-Il-Sung simply refused to acknowledge to the world that North Korea could not meet its own food requirements. If the country was a nation of small independent farmers this might not have been so embarrassing. But in a totalitarian socialist state, a system vaunting its ability to sustain its population’s needs where capitalism could not, it was especially humiliating. Moreover, if some form of inaction constitutes the gravamen of the offense, it would seem incumbent upon the accuser to establish that the international community would have responded in a manner effectively meeting North Korea’s food requirements. Corollary questions might also be properly posed as to whether extensions of aid would be made with conditions attached. One can foresee a prosecutorial black hole emerging in such a process.
In a paper published in 2009 by the Documentation Center of Cambodia, Randle C. DeFalco argues in favor of a crime against humanity as a potential offense to be found in the mass famine under the Khmer Rouge23. DeFalco offers an exacting analysis of statutory language applied to the facts of documented starvation, including impact upon “targeted groups.”24 What the analysis lacks, however, is a description of a causal nexus between alleged perpetrators and the victims of famine. What exactly did the Khmer Rouge leadership do (or not do) that brought famine to the population? Is it enough to simply prove that thousands of deaths from lack of food occurred during Khmer Rouge rule? Is there a legal doctrine that shifts the burden of proof to the defendants under these circumstances? What specific policies were adopted that caused inadequate rice harvests? And, were these policies known, or ought to have been known, as highly likely to result unfavorably? To the contrary, according to Khmer Rouge declarations, the expectation was bounteous agricultural crops, not drastic shortages.
CUSTOMARY INTERNATIONAL LAW
Finally, because “crimes against humanity” rely primarily25 upon the corpus of customary international law as a basis for imposing criminal liability, any prosecution using mass starvation as a factual starting point must demonstrate that the law on this question, from 1975-1979, was sufficiently defined to support the charge. As should be clear from the foregoing discussion, even by 1979 this level of legal surety is doubtful.
Famine is a human scourge, probably accounting for more deaths across the ages than even the most notorious crimes against humanity. Given this circumstance, it is no surprise that human rights advocates focus attention on obtaining legal redress where avoidable mass starvation can be framed as a crime against humanity. But as with any other courtroom matter, evidentiary facts and causation must be proved. The task may be difficult, especially where a documentary trail is virtually non-existent. Moreover, customary international law in 1979 was probably not sufficiently established to support a famine-based charge against the Khmer Rouge leadership.
* Presented at the Annual Meeting of the American Society of Criminology, November 17-21, 2010, San Francisco, CA.
1 Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79 456 (Yale Univ. Press 1996).
2 Kiernan, supra note 1, at 456.
3 Philip Short, Pol Pot: Anatomy of a Nightmare 271 (Holt and Co. 2004).
4 Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary 347 (Howard J. De Nike, John Quigley & Kenneth J. Robinson, eds., Univ. of Pa. Press 2000).
5 Kiernan, supra note 1, at 456 -60.
6 Id. at 19.
7 Id. at 450.
8 Short, supra note 3, at 430.
9 Id. at 431.
10 Holland v. United States, 348 U.S. 121, 138 – 39 (1954).
11 Genocide in Cambodia, supra note 4, at 1.
12 Id. at 349.
13 Id. at 347.
14 Kiernan, supra note 1, at 251-309.
15 See Ian Harris, Buddhism Under Pol Pot, Documentation Series No. 13 (Documentation Center of Cambodia 2007).
16 Genocide in Cambodia, supra note 4, at 348.
17 Kiernan, supra note 1, at 7.
18 DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195-201 (1989).
19 Id. at 201.
20 Application of Yamashita, 327 U.S. 1, 14-15 (1946).
21 Ann Marie Prévost, Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita, 14 Hum. Rts. Q. 303 (1992).
22 Meredith Woo-Cumings, The Political Ecology of Famine: the North Korean Catastrophe and Its Lessons (2002), http://personal.lse.ac.uk/SIDEL/images/WooFamine.pdf (unpublished manuscript, on file with The University of Michigan Department of Political Science).
23 Randle C. DeFalco, Accounting for Famine at the Extraordinary Chambers in the Courts of Cambodia 4, (Documentation Center of Cambodia 2009), available at http://www.cambodiatribunal.org/eccc-a-ngo-reports/ngo-reports.html (last visited April 22, 2011).
24 Id. at 17-18.
25 John Quigley, The Genocide Convention: An International Law Analysis 80-83, 273 (Ashgate Pub. 2006).