Starvation as a method of warfare and applicable IHL

Author:
Angelo Stirone

is an Italian qualified lawyer registered at the Bologna Bar Association. He is President and founder of the Association of Young International Criminal Lawyers (www.ayicl.com). He is currently working as a lawyer at the Law Firm of Professor Gamberini in Bologna (Studio Legale Gamberini) where he primarily litigates domestic and European criminal law cases. Angelo also works as teaching assistant at the University of Bologna in International and European Criminal Law and International Criminal Justice.

Introduction

This essay briefly explores the relevant legal framework that covers the conduct of starvation under IHL, paying particular attention to how this phenomenon is defined under the Geneva Conventions, their Additional Protocols, and within the IHL Customary Rules of the International Committee of the Red Cross. Section one, provides some historical context.

1. Historical perspective

During the Nazi-led siege of Leningrad one million civilians were starved to death as a result of the two and half years blockade of the former capital of the Russian Empire. Another man-induced famine occurred in Soviet Ukraine during the Bolshevik campaign of 1932-1933. History provides many other terrifying examples: the siege of Sarajevo, the so-called scorched earth tactics used during the United States Civil War, or more recently, sieges in places like Aleppo, or blockades of ports in Yemen. Hunger is a very cheap weapon, and “in the whole history of warfare, any nation which has been in a position to starve its enemy out, has done so.”

Nevertheless, actions of enforced mass starvation often remain unpunished, principally because they occur during non-international armed conflicts. Some are processed under the aegis of crimes against humanity (CAH) or war crimes, because the conduct that characterizes starvation is closely linked to other punishable behaviors. This also makes it difficult to mark its essential traits that would distinguish starvation from these other crimes. To date, no Court has entered a conviction for an international crime predicated explicitly on famine. Although starvation has appeared in approximately 20 cases before the international courts, it has mostly been included in other crimes or as a part of ill-treatment during detention. In fact, due to the difficulties inherent to proving this crime, prosecutors have always addressed it alongside other charges. For instance, when Major General Stanislav Galič, the commander of the SRK unit was indicted for attacks on civilians as violations of the laws or customs of war before the International Criminal Tribunal for the former Yugoslavia (ICTY), no charges of starvation were filed. Essentially, judges and prosecutors at the ICTY have until now preferred to address deprivations of food or other indispensable objects with charges of CAH, murder, forcible transfer or persecution, among others. Similarly, at the Extraordinary Chambers in the Courts of Cambodia (ECCC), specifically created to prosecute senior leaders of the Khmer Rouge regime that ruled Cambodia between 1975 and 1979, no prosecutions of starvation-related crimes have been ever commenced. At least 1.7 million people are believed to have died from starvation, torture, execution and forced labor during this four year period. Famine related crimes were mostly subsumed in other offences, namely CAH (such as persecution, extermination, enslavement, imprisonment or other inhumane acts), grave breaches of the Geneva Conventions of 1949 (such as willful killing, torture and inhumane treatment, willfully causing great suffering or serious injury to body or health, unlawful confinement of a civilian) or genocide. Very few prosecutions have been carried out at the national level, with several exceptions such as Croatia domestically prosecuting Momčilo Perišić, a Colonel of the Yugoslav National Army, and 18 others for the crime of starvation of civilians committed during the siege of Zadar, and Ethiopia and India prosecuting the crime of starvation as a separate offense. 

2. Relevant IHL framework

Having in mind the present situation, many authors have called for a codification of a specific famine-related crime and some States have requested amendments of the ICC Statute, proposing the inclusion of this crime in art. 8(2)(e). Some positive steps in this direction have been seen, and these developments have dominated the debate lately (for a comprehensive analysis see starvationaccountability.org). This essay shall hence not address this topic, but instead briefly assess what is the “state of the art” of the legal framework under IHL. 

Famine is often used as a weapon of war, either to gain control of a group of people or to oblige them to move out of a particular region. “Although starvation may be a result of this crime, it is not the object of criminalization”, or at least not during Non-International Armed Conflicts as stipulated by Common Article 3 of the Geneva Conventions that contains the applicable provisions in the case of armed conflicts of a non-international character, occurring in the territory of one of the High Contracting Parties. However, starvation of civilians contrasts with the most basic principles of the law of war. In fact, the explicit provisions, as outlined in the Geneva Conventions and their Additional Protocols (art. 54 API and art 14 APII) and as highlighted by the CIL study of the ICRC, are far from being the sole prohibitions that regulate the right to be free from hunger during armed conflicts. Pursuant to the principle of distinction, it is generally forbidden to attack civilians and civilian objects. Article 48 of the 1977 Additional Protocol I provides: “[T]he Parties to the conflict shall at all times distinguish between the civilian population and combatants”. Rule 9 of the IHL Customary database of the ICRC defines civilian objects as all those objects that are not military. That said, those resources that are used by both the military and the population cannot be legitimately attacked unless imperative military necessity requires it. On the contrary, objects of exclusive use of civilians must be safeguarded in times of war. In this regard consider the prohibition of the use of weapons that can cause unnecessary suffering or damages such as cluster munitions or antipersonnel mines, as stated in art. 35 of API, which would, for instance, render it impossible to cultivate the land. Also, the prohibition of forced displacement, as set forth in art. 49 of the Fourth Geneva Convention and art. 17 APII, can be violated as a consequence of the destruction of resources that guarantee the basic needs of the population. Additionally, the principle of proportionality codified in art. 51 API must always be considered during military operations. Lastly, art. 57 API demands that in the conduct of military operations “constant care shall be taken to spare the civilian population and all feasible precautions shall be assumed in order to avoid, or in any event, minimizing incidental loss of civilians, injury to civilians and damages”. This is true especially in relation to resources such as crops, agricultural land, water facilities or any other critical infrastructure whose destruction can increase the possibility of famine and illness. 

The Commentary on the 1997 Additional Protocols of the Geneva Conventions defines starvation as a “weapon to annihilate or weaken the population”, but the explicit provision that protects civilians and prohibits the use of starvation as a weapon of war is found in Article 54 of the API. It states that it “is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations, supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”. Many authors, most notably Michael Cottier, argue that the list of verbs was inserted in order to avoid any loophole and protect civilians in the widest possible way. The verb "attack" here refers to acts of violence against the adversary, acting either in offence or defense, as stated by Article 49 of API. Yet, the letter of the law remains subject to interpretation: although some examples of indispensable objects are provided by the rule itself, this list is not intended to be exhaustive. 

The second Additional Protocol to the Geneva Conventions (APII), devoted to the protection of victims of non-international armeda conflicts, contains a rule on starvation in its Article 14. This prohibition is generally considered to be part of customary international law—rules 53 and 54 of the Customary IHL study, explicitly recall what is provided for in articles 54 of API and 14 of APII. Rules 55 and 56 further regulate the (rapid and unimpeded) passage of humanitarian relief for civilians in need and the freedom of movement of humanitarian personnel, which can be temporarily restricted only in cases of imperative military necessity. According to the ICRC study, Rules 53 – 56, being part of customary international law, apply in both IAC and NIAC. Consequently, the ICRC argues that there is evidence of State practice establishing these rules as norms of Customary International Law. As reported by Global Rights Compliance and World Peace Foundations, eight national jurisdictions have criminalized starvation in both NIACs and IACs. Starvation is considered a crime under the Statute of The African Court of Justice and Human Rights (Malabo Protocol) and numerous military manuals further specify that is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population. Lastly, UNSC Resolution 2417 and 2573 seem to have crystallized the existing state practice, avoiding distinguishing between situations of IAC and NIAC.

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