Challenging the "crime of silence": subsistence harms and their recognition within and beyond conventional law

Human existence determines that we are vulnerable not only to attacks on physical integrity, but also to harms which militate against the means of subsistence. Deprivations of subsistence needs in the form of attacks on homes, land, livelihoods and basic resources have been widely perpetrated throughout history and are a particularly significant feature of contemporary conflict and political repression. However, international law is yet to fully recognise these harms as a discrete form of injustice and thus to address them within the mechanisms of international criminal and transitional justice. The thesis defines deprivations of subsistence needs, when perpetrated with knowledge of the possible consequences of such attacks, as "subsistence harms". It argues that subsistence harms constitute a particular and devastating type of violence, which involves interrelated physical, mental and social harms and is inherently gendered. While the existing legal framework acknowledges some aspects of subsistence harms, the failure of law to understand them as discrete, yet also multifaceted, means that its approach remains partial and fragmented; often resulting in continued marginalisation or silencing of these harms. The thesis examines both the potential and the pitfalls of using international law to begin to fully recognise subsistence harms. It argues that international law could and should play an important role in promoting their recognition. Nevertheless, the thesis also problematises the role of law and draws on critical approaches, in order to analyse alternative understandings of harm and spaces for recognition; especially the praxis of non-governmental tribunals and of social movements. Although law can provide a language for recognition of harms, which can be drawn on by such movements, it also imposes barriers to recognition due to its narrow conceptions of harm and violence. The relationship between subsistence harms and legal recognition is therefore complex and thus requires much greater attention within legal discourse, if such harms are ever to be fully addressed.