Jahaan Pittalwala, and Juliette Paauwe join JiC for this guest-post on starvation as an atrocity crime. Jahaan is a Research Analyst at the Global Centre for the Responsibility to Protect. Juliette is a Senior Research Analyst, also at the GCR2P.
The suffering of civilians in times of conflict is rarely an accident of war. It is instead more commonly an intentional tactic employed by a warring party with little to no regard for the rule of law, aiming to inflict the collapse of a population in its strategic favour. Civilian death tolls in protracted conflicts have reached devastating heights, numbers too large to be the result of mere “collateral damage”. In 2019, more than 20,000 civilians were killed or maimed in just ten conflicts. These deaths and the continued brazen brutality of the actors that caused them, paint an alarming picture: civilians are increasingly the primary targets of indiscriminate tactics of war. That includes the deliberate starvation of civilian communities.
Civilians are targeted in war in both overt and discreet ways. Indiscriminate airstrikes and shelling often reduce civilian objects, such as markets, schools and hospitals, to rubble – the very visible destruction of infrastructure and immediate civilian deaths make it reasonably apparent that there is responsibility for and intent behind the atrocity.
It can be harder to recognize there is a calculated motive as well as a responsible party behind other types of civilian suffering. The starvation of civilians during times of conflict is one such example; it is more complicated to determine that this atrocity is being deliberately perpetrated as a war tactic.
Nevertheless, the deliberate starvation of civilians is undoubtedly another weapon increasingly employed by perpetrators as a tool to intentionally inflict mass suffering on civilian populations. In January 2016, whencondemning the starvation of civilians in Syria, former UN Secretary-General Ban Ki-Moon characterized this in plain terms: “Let me be clear: The use of starvation as a weapon of war is a war crime.”
Though this method of warfare has always been prohibited under international humanitarian law and customary law – and is not necessarily a new tactic of war – it has proven difficult to prosecute the deliberate starvation of civilians as a war crime. Other more “obvious” war crimes against civilians tend to overshadow the more underhanded and long-term suffering caused by deliberate starvation. This, combined with a lack of clarity and understanding as well as the absence of possible avenues to bring perpetrators to justice, has made it difficult to prosecute and potentially deter the deliberate starvation of civilians.
Recently, this has started to shift. An increased understanding that this crime is more often committed during civil wars, or non-international armed conflicts (NIACs), has been accompanied by important steps to criminalize the deliberate starvation of civilians in this context. The UN Security Council is increasingly acknowledging the link between armed conflict and conflict-induced food insecurity and the threat of famine; landmark Resolution 2417 (2018) underlines that using the starvation of civilians as a method of warfare may constitute a war crime. Several UN Human Rights Council (HRC)-mandated investigative mechanisms have also started unpacking the specific elements and intent behind this crime, facilitating an increased understanding of what constitutes the deliberate starvation of civilians and assisting prosecutors and lawyers going forward.
Unpacking Starvation as a War Crime
In Yemen, there exists a dire humanitarian crisis almost entirely the result of the conduct of warring parties: more than 24 million Yemenis need humanitarian assistance and over 2 million are facing acute food insecurity. In 2019, the HRC-mandated Group of Eminent Experts for Yemen reported that parties to the conflict have perpetrated “the prevention of access for humanitarian aid, the use of import and other restrictions as a military tactic and use of starvation of civilians as a method of warfare.” Attacks by warring parties on the ground, primarily the Houthis and forces loyal to the internationally recognized government, have impacted objects and areas essential for the survival of the civilian population, including public markets, farms, livestock, fishing boats, food warehouses, and water wells. Parties to the conflict have also prevented humanitarian aid access and impeded humanitarian relief by imposing arbitrary fees and complicated bureaucratic procedures as well as contributed to price increases and lack of availability of critical goods such as fuel.
During South Sudan’s civil war, both government forces and armed opposition groups used starvation as part of their military tactics, including by systematically attacking, pillaging, destroying and rendering useless objects indispensable for the survival of civilians. In 2020, the HRC-mandated Commission on Human Rights for South Sudan issued a conference room paper entirely dedicated to detailing and unpacking these crimes. According to the Commission, ancestral communities of farmers were also forcibly displaced, and their land expropriated to benefit communities loyal to the government. Combined with environmental factors, the starvation tactics contributed to a famine that was officially declared in 2017 and which affected almost 50% of the population. The Commission further reported that government forces also systematically denied humanitarian access to civilians living in opposition-controlled areas, depriving them of access to food, water and other crucial supplies.
This reporting by HRC-mandated mechanisms has increased international consciousness that the starvation of civilians during conflict is not an unfortunate consequence of hostilities, but rather a planned and deliberate tactic of war, targeting the heart of human survival and inflicting mass suffering. It demands accountability.
Criminalizing Starvation as a War Crime
To effectively pursue accountability for the deliberate starvation of civilians, the international community requires relevant international legal principles and jurisprudence as well as effective institutions. The deliberate starvation of civilians is not a new tactic of war nor is it a new area of international justice. The 1949 Geneva Conventions and its Additional Protocols prohibit the starvation of civilians in the context of an armed conflict and protect objects indispensable to the survival of the civilian population. Since its inception in 2002, the International Criminal Court (ICC) has had jurisdiction over the deliberate starvation of civilians as a war crime during international armed conflicts (IACs), offering possible avenues to determine individual criminal responsibility and prosecute perpetrators for this crime.
Until recently, the war crime of starvation of civilians in the Rome Statute could only be applied to IACs. This gap became increasingly unpalatable as civilian suffering in Syria, South Sudan and Yemen – all classified as NIACs – became impossible to ignore. Calls to address this were issued by numerous international actors, including the UN Special Rapporteur on the Right to Food in 2017. The increased international attention and corresponding reporting by HRC-mandated mechanisms culminated in the adoption of a long-awaited amendment by the Assembly of States Parties of the ICC in December 2019 that expanded the jurisdiction of the deliberate starvation of civilians as a war crime to civil wars. Specifically, the amendment criminalized the “intentional use of starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies” in NIACs.
The significance of this amendment lies in its utility for future prosecutions. As with all atrocity crimes, ending the cycle of impunity and ensuring compliance with international law is crucial to the protection of civilians. A blatant disregard for the rule of law is at the heart of the increased use of the deliberate starvation of civilians as a weapon of war. Accountability and justice for perpetrators is an integral step in preventing its recurrence, and the Rome Statute amendment is particularly important in this regard. In order for there to be prosecutions at the ICC for the crime of deliberate starvation of civilians in NIACs, States Parties must ratify this most recent amendment. So far, only New Zealand and Andorra have done so. The significance also extends beyond the Court; when more States Parties ratify this amendment and integrate it into their national legislation, more opportunities could arise for prosecution of the deliberate starvation of civilians as a war crime under universal jurisdiction.
The cases of Syria, South Sudan and Yemen have made the international community acutely aware of the extent to which the starvation of civilians is perpetrated deliberately and with specific intent by warring parties. Now, with the recent amendment of the Rome Statute, the international community must correspondingly increase its political will to ensure accountability for this war crime. Progress in international justice will help ensure that the laws of war become more steadfastly upheld and civilians more effectively protected.
The international legal toolbox is there, all that is left is for the international community to garner the resolve to use it.
Nice piece namesake