A Gendered Analysis of Famines as Genocide-Locating Opportunities for International Law

Though famines affect women to a greater degree than men, this gendered impact is rarely recognized in international law. With the current food crisis in Gaza, famines as genocidal acts need to be analysed through a gendered lens to comprehensively protect the plausible rights of Palestinians in Gaza from acts of genocide perpetrated by Israel (para. 54). The gender-blind nature of genocide jurisprudence and its hesitance to prosecute non-lethal incremental acts of violence is a significant roadblock in this process.

Gendered Impact of Famines

Worldwide, food insecurity disproportionately affects women. This is exacerbated by situations of widespread famine, such as that in Gaza. In societies with pre-existing widespread discrimination, men receive preferential access to resources, making women more likely to receive less nutrition . Gendered expectations imposed on women to be caregivers and thus provide for their family before themselves further exacerbate this disproportionate impact.

Contextualising Famines as Genocide

Famine is a purely man-made phenomenon; societies with equitable access to resources would never face situations of famine (p. 51). David Marcus was among the first scholars to propose prosecuting famines as genocide. He argued that first-degree “faminogenic behaviour” (where a state is determined to exterminate a population through famine) and its second-degree counterpart (where the state recklessly ignores evidence that its actions are resulting in or prolonging the starvation of a significant number of persons) meet the actus reus requirements of genocide (p. 262 f.). Starvation or inflicting faminogenic conditions can be considered to amount to the genocidal act of “deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part” as defined in Art. II lit. c Genocide Convention. This has also been recognized by the International Criminal Court’s ‘Elements of Crimes’ (footnote 4 on p. 2) as well as case law, namely in the International Criminal Tribunal for Rwanda’s (‘ICTR’) Prosecutor v. Kayishema (Trial Chamber II Judgement, para. 116).

However, meeting the high mens rea threshold of genocide is more challenging. Marcus himself was doubtful whether faminogenic behaviour, no matter how reckless, fulfils this high threshold. The mens rea for genocide consists of “two separate elements” (p. 834), namely general and specific intent. While the former relates to criminal intent required for the objective elements (actus reus), specific intent is a subjective “surplus” of intent. The perpetrator “may intend more than he is realistically able to accomplish” (p. 835). The high dolus specialis requirement was clearly brought out in the International Commission of Inquiry on Darfur, which explained that it implies that the perpetrator both “consciously desired” and knew that his prohibited acts would destroy the group in whole or in part (para. 491). It was vindicated in the International Criminal Tribunal for the former Yugoslavia’s decisions both in Prosecutor v. Krstić (Appeal Judgement, para. 134) and Prosecutor v. Goran Jelisic (Appeal Judgement, paras. 45-46).

Hence, Marcus and other scholars who argue for famines to be considered as genocide are forced to adhere to the existing limited contours of case law. which reserve fulfilment of dolus specialis “for the worst of human rights abuses but unfortunately making it too inflexible to reach famine crimes” (p. 264).

Starvation and Gender-Incremental Killing of Women

In genocide jurisprudence, physical destruction is predominant, at the expense of obscuring slower, less outrightly violent infringements aimed at “eventual death” (p. 7). Genocidal acts such as killing (Art. II lit. a Genocide Convention) or causing serious bodily harm (Art. II lit. b Genocide Convention) are more likely to be recognized as such. Consequently, the typically more direct violence against men, who are perceived as a greater threat due to the social perception of men as leaders and fighters (p. 14), is more likely to be seen.

The violence women face is much slower and systemic in nature. Rosenberg and Silina contextualize this as “genocide by attrition” – “the slow process of annihilation” which systematically deprives groups of human rights in favour of immediately unleashing violence on them (p. 209). They argue that the genocide of women is deliberately done as an incremental act as opposed to the ‘fast’ killing of boys and men to avoid scrutiny under international law (p. 217).

The Human Rights Council report documenting the genocide of the Yazidis by ISIS showed that while the ISIS fighters “summarily executed men and older boys”, the damage inflicted on Yazidi women and girls was deliberately drawn out. The continued degradation of these women was a strategy undertaken with the complete awareness that “over a long period of time, [it] would cause the deaths of Yazidi women and children” (para. 140).

Additionally, tactics such as rape or intentionally starving pregnant women to cause miscarriages do not always kill women. These tactics rather fulfil a stronger purpose of bringing shame upon her family, making her a constant reminder of the perpetrator’s might if disobeyed (see, Smith, p. 178). Though being incremental, the violence by starvation is no less harmful. For instance, scholars have argued that the 1932-33 famine in the Soviet Ukraine, known as the Holodomor, was a politically engineered calamity which must be recognized as genocide (see, Bertelsen, p. 77) The accounts of women from this period show that prolonged hunger triggered drastic hormonal changes in the body, entailing a complete abandonment of previously held values in favour of the singular obsession of curing this hunger for themselves and their children (Bertelsen, p. 82) Reinforcing power dynamics, this prompted women to submit to sexual abuse and prostitution in exchange for food, making rape yet another tool in the hands of the perpetrator group to exert control.

Rejection of ‘Genocide by Attrition’ in Case Law

Illuminating the treatment of non-lethal rape in genocide jurisprudence can shed light on the hesitancy of courts and tribunals to prosecute incremental acts of violence as genocide. The oft-cited Prosecutor v. Jean Paul Akayesu (‘Akayesu’) judgment of the ICTR laid down the celebrated dictum that “rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims” (para. 731). In Akayesu, the ICTR noted that the rape of women meets the actus reus requirement of Art. II lit. d Genocide Convention, if a woman, who lives in a patriarchal society where the membership of a group is determined by the father, is deliberately impregnated by a man of another group (para. 507). Additionally, the ICTR understood situations where the raped individual subsequently refuses to procreate as genocidal acts under Art. II lit. d Genocide Convention (para. 508).

While Akayesu was a watershed development when it comes to recognising that rape and other forms of sexual violence meet the actus reus requirement of the Genocide Convention, it still qualifies the act of rape with other effects, leaving doubt as to whether rape simpliciter would amount to a genocidal act. This ambiguity was further enhanced by subsequent paragraphs of the judgment, which stressed how these acts of rape “were accompanied with the intent to kill those women” (para. 733).

The International Court of Justice (‘ICJ’), in Croatia v. Serbia, had to determine whether the acts of the respective states against ethnic Serbs and Croats amounted to genocide. Cognizant of the high threshold of dolus specialis that it would have to prove, Serbia made an alternative submission that even if none of the alleged acts is in itself evidence of genocidal intent, “the acts of the Croatian authorities during and immediately after Operation Storm show clear intent to destroy Croation Serbs in whole or in part” (Merits, para. 508). The ICJ rejected Serbia’s submission by laying down that to be accepted as evidence of dolus specialis, a consistent series of acts must be such that “they could only be reasonably understood” as reflecting the intention to destroy in whole or in part, the Serbs in Croatia. In ultimately concluding that the special intent requirement had not been met, the Court held that “the killing of civilians and the ill-treatment of defenceless individuals — were not committed on a scale such that they could only point to the existence of a genocidal intent” (Merits, para. 512).

Locating Opportunities for International Law 

Limiting our understanding of genocide as intentional mass murder gives states wiggle room to engage in large-scale faminogenic behaviour without being considered genocidal. The treatment of non-lethal sexual violence in genocide jurisprudence is a grim premonition of how faminogenic behaviour will be construed if the rigid boundaries of specific intent are not relaxed to accommodate drawn-out attempts at genocide. This was seen most evidently in the Gambia v. Myanmar case before the ICJ. Gambia argued that there existed “a plausible claim” (paras. 15-23) of genocide against the Rohingya community in Myanmar based on inter alia, the findings of a research team which went to Myanmar and observed similarity of patterns from the condition of the Tutsis in Rwanda. While Gambia’s agents extensively discussed the gendered nature of the violence perpetrated in Myanmar, highlighting evidence of a “notable pattern” of mass gang rape, including of pregnant women (paras. 17-20), Myanmar in their response never addressed the widespread gender-based atrocities. In the absence of an explicit acknowledgement by international courts and tribunals, states will continue to ignore such instances of gender-based violence as evidence of genocide. Limiting our understanding of famine crimes to
“a virulent form of starvation causing widespread death” (Sen, p. 48) is dangerous. Merely focussing on the lethal nature of starvation excludes the experiences of those women who are not immediately killed, but “allowed” to survive for the purpose of subjecting them to sexual exploitation. Here, too, intersectional perspectives are a key for comprehensive legal protection.

In its order on Provisional Measures in the South Africa v. Israel case, the ICJ, noted that “[a]n unprecedented 93% of the population in Gaza is facing crisis levels of hunger…” (para. 48). While the academic discourse on the gendered nature of genocide is fairly developed, adding nuance in the form of inclusion of famine crimes is long overdue. The emerging and highly relevant jurisprudence on how famines should be prosecuted as genocide provides an opportunity to address these shortcomings of genocide jurisprudence in general which has long been gender-blind, thereby excluding multiple marginalised groups from its ambit of protection. Any academic discussion on famine as genocide will be incomplete without this feminist perspective.