Cloé Dubuc joins JiC for this guest-post on the war crime of starvation. Cloé is an L.L.M candidate at Laval University and assistant director of the International Criminal and Humanitarian Law Clinic.

In the midst of the war in Ukraine, allegations of Russia’s use of starvation tactics are mounting. Several sources have reported obstruction of humanitarian access and shelling of food storage facilities. Ukraine’s Foreign Minister has described these tactics as “hunger games” played by Russia.

Similarly, recent investigations have found widespread destruction and looting of food, agricultural products, livestock, markets, and crops in several counties of South Sudan. These deliberate starvation tactics have forced hundreds of thousands of civilians to flee, exacerbating food insecurity and famine in the country. The World Food Program now estimates that 8.3 million South Sudanese – 75% of the population – are suffering from severe food insecurity.

While the situations in Ukraine and South Sudan shadow the same phenomenon and are leading to similar consequences for those targeted, victims are not provided with the same recourse to justice. As of today, a critical gap remains in the fight against impunity for these so-called starvation tactics. Indeed, the International Criminal Court (ICC) currently lacks the legal capacity to prosecute perpetrators in South Sudan for destroying livestock and crops. The reason? The use of starvation as a method of warfare is only criminalized as a war crime in international armed conflicts (IACs) under the Rome Statute (see Article 8(2)(b)(xxv)).

As conflicts today increasingly take the form of civil wars, rebel insurgencies, or other types of internal violence, the urge to close the Rome Statute’s gap is even greater. This pressing call for action was partially answered in 2019, when Switzerland proposed an amendment to the Rome Statute to criminalize the use of starvation as a method of warfare in non-international armed conflicts (NIACs). The proposal was unanimously adopted by the ICC’s state parties and subsequently ratified by 11 countries. 

This ongoing development was welcomed during the 21^st session of the Assembly of State Parties of the ICC at the side event titled “Strengthening the Protection of Civilians: Why Ratifying the War Crime of Starvation Matters”. The panelists called for broader ratification of the Starvation Amendment (see here for an explanation of the Rome Statute’samendment regime). This event was organized, among others, by the Global Rights Compliance Foundation (GRC) and was aimed at launching the GRC Ratification Guidebook.

Reflecting on the Guidebook’s content, the panelists provided different reasons as to why ratify the Starvation Amendment, including “providing greater protections for civilians, strengthening accountability for perpetrators, improving consistency of the law applicable in international and non-international armed conflicts, and strengthening the Rome Statute”. Although not contained in the Guidebook, the ICC’s Office of the Prosecutor raised as a further argument, the principle of fair labelling.

The following sections briefly explain the principle and analyse its application in relation to the crime of starvation. 

What’s Fair Labelling and What’s at Stake?

Fair labelling in criminal law generally aims “to ensure that the designation of an offence accurately represents the offender’s criminality, wrongdoing or harm, i.e., the nature and magnitude of the law-breaking”. This is a fundamental principle of justice that ensures fairness “to defendants, victims and the public at large”.

As regards the international community, fairness is usually addressed in labelling criminal conducts in a manner that captures the gravity and mass scale nature of international crimes. For example, when atrocities fall short of being reported at a “sufficient level” for the general public, while displaying features of large-scale extermination, the public often hastens to label these atrocities as “genocide” because this carries and arouses significant moral opprobrium. As emphasized by Tom Dannenbaum, “the stakes associated with [the principle of fair labelling] are magnified in international criminal law, where verdicts are of profound political significance to large constituencies, and the crimes are thought to carry an elevated stigma”.

For the accused, fairness is deeply rooted in fair labelling’s function to ensure that an offence is signaled by the law. This function in turn, guarantees the rights of the accused in relation to the principle of legality. The issue of fair labelling with respect to the rights of the accused has been raised in some ICC cases, in particular to ensure adequate characterisation of the modes of liability enshrined in the Rome Statute (See e.g., Al Mahdi, Judgment, para. 60; Lubanga, Appeal Judgment,para. 462).

Regarding victims, Talita Dias argues that “the symbolism surrounding charges and convictions for international crimes – conveying an official and public recognition of their loss and suffering –may bring greater satisfaction than the punishment of any individual perpetrator or monetary compensation”. Indeed, a criminal label that accurately reflects victims’ experiences can provide a greater sense of justice, as their experiences are properly recognized and validated. This is especially true for victims of sexual and gender-based violence. In the ICC Trial Judgement against Dominic Ongwen, judges reflected on the inclusion and significance of the crime of forced pregnancy in the Rome Statute and held that, consistent with the principle of fair labeling, “the proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims”. This finding echoed what the Legal Representatives of Victims argued: that subsuming acts of forced marriage into the sexual slavery crime “would not accurately reflect the harm suffered by hundreds of women and girls”. 

Applying the Principle of Fair Labelling to Starvation Tactics in NIACs

Starvation tactics under the ICC’s legal framework could in principle qualify as several war crimes, including attacks on civilians, pillaging, and attacks on humanitarian assistance. However, as highlighted above, prosecuting acts of starvation under these war crimes would not be sufficient to capture the full extent and pervasive nature of such acts. Severe malnutrition, and in some cases death, can occur long after a perpetrator’s attack on objects indispensable to the survival of civilians. Therefore, the principle of fair labelling could ensure that the agonizing and long-lasting effects of starvation are accurately acknowledged. 

In addition to reflecting an appropriate level of condemnation, fair labelling starvation tactics would mark an important symbolic step in the fight against impunity. To this day, there is little jurisprudence dealing with acts of starvation both at the international and national level (see this Jurisprudence Digest). 

Moreover, making explicit the possibility of prosecuting starvation as a war crime in NIACs could shift the public’s perception of famine. Alex de Waal and Bridget Conley argue that,“[w]hen a member of the public sees a picture of a starving person, in addition to pity and a charitable impulse to help, the immediate impulse should be to ask, ‘Who did this to them?’”. The feelings of pity and helplessness turn into a desire for accountability. 

As for the victims, labelling starvation as a war crime can help dispel misconceptions on famine as “a personal or family trouble, an unavoidable or natural misfortune, or a shameful trauma that is of no interest to wider society”. The narrative of a natural disaster or humanitarian crisis can therefore be transformed into a formal recognition of the criminal nature of starvation. By naming the crime as such, the burden of shame can be reversed.

The application of the fair labeling principle can also defuse the so-called grey zone of famine, in which concepts of victimhood and accountability are intertwined. This grey zone refers to the fact that during a famine, decisions are based on survival and may involve stealing or selling goods, refusing to share food with neighbors, or giving priority to certain family members. These decisions can generate guilt and a sense of responsibility among victims who then become “accomplices in their own degradation”. Fair labelling starvation tactics may therefore help delineate notions of perpetrators and victims, and once again, shift the guilt onto perpetrators.

These rationales for fair labelling become even more compelling when one recalls that the interests of these audiences are not addressed solely by virtue of the type of conflict. The case of South Sudan is not an isolated one. The use of starvation tactics has also been reported in other NIACs, such as  Somalia, Yemen and Tigray. To date, conflicts remain the main driver of famine around the world. 

Providing justice to these victims starts with accurately acknowledging and validating their suffering.  To do so, we must ensure that “the [label] fits the crime”.