In 2017, 38 non-international armed conflicts (“NIACs”) raged across the world. All these conflicts commenced before 2017 and none of them saw a conclusive end. UNSC Resolution 2417 in May 2018 called on all parties to all conflicts to cease the denial of humanitarian assistance to civilian populations. The resolution noted that civilians have been deprived of food and essential medicine, that objects and infrastructure indispensable to their survival have come under targeted attacks and underlined that the use of starvation as a method of warfare could be a war crime.
Over the last few years, reports and UN resolutions on Syria, Yemen, the DRC, Libya and South Sudan have proliferated with accounts of the effects of war in these countries. Governments and armed groups have impeded the access of humanitarian aid to needy populations with dire consequences.
In this context, it is of a paramount importance to identify the provisions of the Rome Statute which apply to the denial of humanitarian assistance. While article 8(2)(b)(xxv) is a distinct provision criminalising starvation as a method of warfare in international armed conflicts, there is no corresponding provision for NIACs. Starvation of the population during a NIAC could arguably fall under other war crimes and crimes against humanity in the Statute, but, each of these crimes poses certain difficulties with accommodating the crime of starvation.
I. War Crimes
Murder, article 8(2)(c)(i): This includes the commission or omission of acts that are contrary to treaty and customary international humanitarian law (“IHL”), which result in death. The prohibition of starvation as a method of warfare in NIACs does have customary status (refer below) and would fall within the ambit of this crime. However, the Preparatory Committee (in the context of criminalising starvation in international armed conflicts) discarded a proposal that mentioned death as a necessary element of the crime of denial of humanitarian assistance. This clearly indicates that the war crime of starvation does not have to result in death, while murder requires the result of death. Thus, starvation that merely results in severely injurious effects on health would not satisfy the charge of murder.
Cruel treatment, article 8(2)(c)(i): An appropriate charge when severe mental or physical suffering is inflicted on a protected victim. This infliction must be intentional, and inhuman or contrary to the principle of humanity.
Inhuman treatment extends to acts that cause great suffering and which gravely impede the ability to live normal and constructive lives. Starvation has been considered inhuman or cruel treatment in the ICTY. What is pertinent to note is that intentional starvation has been considered a crime when taken in conjunction with other facts and circumstances (Krnojelac, Mrskic). It has also primarily been invoked either in situations of occupation or in the context of camp detainees.
It could be argued that the status of persons subjected to cruel treatment does not matter to characterise the treatment as criminal (Blaskic). Moreover, the provision of humanitarian aid is in consonance with the principles of humanity (Nicaragua v USA), and by logical extension, its denial would contradict the same principle. However, this approach does shift the focus from criminalisation of a method of warfareto the criminalisation of treatment meted out to protected persons, regardless of whether it was intended as a method of warfare.
Attacks on humanitarian personnel or objects, article 8(2)(e)(iii):Though starvation may be a result of this crime, it is not the object of criminalisation. This was the first time a multilateral treaty made attacks (which is any act of violence directed at the adversary in offense or defense) on humanitarian or peacekeeping personnel a war crime, and it stemmed from a need to prevent attacks as well as to punish offenders. Starvation may be a direct or indirect repercussion of such a crime, but it is not the intended method of warfare. Furthermore, the offense is too exclusionary – too many acts, not involving attacks, but with the same effect fall beyond its purview.
Destroying or seizing the property of the adversary, article 8(2)(e)(xii): Depriving the population of objects indispensable to their survival could be subsumed within this crime. This approach suffers from one fundamental defect. Destruction or seizure of the enemy’s property is not criminal when imperatively demanded by the necessities of war, but the crime of starvation admits of no such exception.
II. Crimes Against Humanity
The provisions of crimes against humanity pose evidentiary and legal difficulties with specific elements.
Murder, article 7(1)(a): itrequires the result of death which contradicts the primary scope of the crime of starvation.
Extermination, article 7(1)(b):A large number of victims (more than one/a small group of persons) must be intentionally targeted or intended to be killed to be classified as extermination. Though there is no minimal threshold set by tribunals, the obvious large-scale element of the crime poses an evidentiary difficulty and has an exclusionary effect on smaller scale crimes.
Persecution, article 7(1)(h):Only encompasses acts targeting populations based on identity -political, racial, national, ethnic, cultural, religious or gender-based grounds in association withother crimes within the Court’s jurisdiction.
Other inhumane acts article 7(1)(k):This seems to encompass intentional starvation, but like all other crimes against humanity, would have to be part of some widespread or systematic policy, and part of a larger attack against civilians. Isolated acts not knowingly forming part of a campaign would be excluded.
Because the statute fails to account for a situation when none of the additional specific elements of these crimes are met, it is vital that a separate provision is added. This inclusion should evoke no academic controversy. The use of starvation as a method of warfare is considered a part of customary international law, manifested in state practice and opinio juris.
III. Status of Starvation under Customary International Law
In the Tadić Decision on Interlocutory Appeals the Chamber laid down certain sources to which attention must be paid when identifying customary IHL applicable during NIACs – official pronouncements of states, military manuals and judicial decisions.
Furthermore, the chamber ascertained evidence of intent to fix individual criminal responsibility for the violations of norms through the statements of government officials, international organisations, and through penalisation by national courts and military courts.
It went on to identify the damage of crops as prohibited during civil war by referring to the state practice of China in 1947. It also referred to an FMLN statement (the organised armed group during civil war in El Salvador) which undertook to comply with Additional Protocol II (which includes a prohibition of starvation as a method of warfare) and UNSC Resolution 794 which condemned as a violation of IHL the deliberate impeding of food and medical supplies deliveries during the Somalian Civil War.
The most compelling rationale was that it would defy logic to allow methods of warfare during NIACs that were prohibited during IACs for being too inhumane. Thus, starvation as a prohibited method of war during IACs, must also be prohibited during NIACs.
The International Committee of the Red Cross has recognised the customary status of the prohibition of starvation in its IHL database. Reference was made to military manuals, legislations, judicial decisions and official statements of a number of countries, and UN documents. All these sources either prohibit starvation as a method of warfare, or additionally penalise it. This is particularly germane as the Tadić Appeals Chamber acknowledged the role of the ICRC in promoting the development and compliance of states with IHL. Both their practical results in the field and their analyses of what constitutes IHL would therefore be quite authoritative.
The Chamber invoked the resolutions of the UNGA, and Additional Protocol II as further indications of what was emerging as customary.
Starvation is prohibited in article 14, Additional Protocol II which prohibits the destruction, removal or rendering of useless anything that is indispensable to the survival of civilians in NIACs.
Security Council Resolutions 2417 (2018), 2401 (2018),2139 (2014),1894 (2009),1296 (2000),794 (1992), and the Statement of the President of the Security Council S/PRST/2017/25, as well as, the Report of the independent international commission of inquiry on the Syrian Arab republic (A/HRC/37/72) denounce the deliberate impeding of humanitarian aid as IHL violations.
Thus, the customary status of this prohibition appears undisputed across types of legal systems and countries.
The drafting history of the Rome statute reveals that starvation within the context of NIACs was initially considered as a distinct crime but was later omitted. Thisappearsto be intentional. Whether the reason for its removal was political, excessive caution or mere mistake, is irrelevant at this stage. What is pertinent is that its continued exclusion is at odds with the object of the Rome Statute. The drafters of the Statute intended to end impunity for crimes within the tapestry of customary international law. In light of the glaring inadequacy of the current ICC framework, the established customary status of this crime, and its widespread perpetration in conflicts today, it is imperative that the Assembly of States seize this moment to effect an amendment.