Clarifying the Contours of the Crime of Starvation

The Lack of Prosecutions

Starving civilians as a method of warfare has long been prohibited and criminalised across the full spectrum of international legal frameworks, yet despite this criminalisation and its grave human cost, there has yet to be a prosecution of starvation on the international level. Consequently, the crime and its intersection with a wide range of other violations remain entirely unexplored.

The crimes that have oc­cupied the international courts are those most frequently associated with an ongoing armed conflict. Whether the persecutory rapes in Bosnia, the slaughter in Rwanda, or the amputations of civilians in Freetown in Sierra Leone. This is the type of criminal conduct that appears to have shaped the perception of the type of deaths and injury that are most appropriate for prosecution in modern international criminal courts, with starvation languishing on the margins of prosecutorial imagination and practice.

In a legal policy paper recently issued by Global Rights Compliance (GRC), we set out in more detail the reasons behind the dearth of prosecutions and explore the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.

The F Word – The Return of Famines

Famines have returned and they strike where accountability (political or criminal) fails. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. The Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid.

In response to this burgeoning humanitarian crisis The United Nations (UN) Security Council unanimously passed in May 2018 (SC) Resolution S/RES/2417 (UNSC 2417) championed by The Kingdom of the Netherlands. UNSC 2417 highlights the war crime of starvation and implores member states to prevent, prohibit and hold to account those who commit the crime. Notwithstanding this and other examples of international recognition of the deliberate nature of starvation, attribution of fault and accountability remain elusive.

Starvation Only Criminalised in International Armed Conflicts

This post briefly considers Article 8(2)(b)(xxv) of the Rome Statue which criminalises starvation only in international armed conflicts (IAC). As a matter of legal analysis, this is a distinction apparently without any rational legal basis. In practice, this lacuna acts to seriously limit the Rome Statute’s ability to allow relevant and effective prosecutions and achieve much needed accountability for contemporary starvation.

Most instances of starvation occurring today are in the context of non-international armed conflicts (NI­AC), the victims of starvation in Yemen, Syria, South-Sudan, north-eastern Nigeria, and Somalia, to name but a few, will, on that basis alone, be denied access to international justice under the current Rome Statute, Article 8 framework. To counter the obvious accountability gap that this limitation creates, in 2018 Switzerland proposed an amendment to the Rome Statute to include starvation within the list of war crimes capable of being committed in a NIAC. For more on this issue and on Switzerland’s proposed amendment see here.

The Crime of Starvation under the Rome Statute

Article 8(2)(b)(xxv) criminalises:

‘Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.

There are four elements required to establish the offence:

The contextual ‘chapeau’ elements

(i) the conduct took place in the context of and was associated with an international armed conflict;

(ii) the perpetrator was aware of factual circumstances that established the existence of an armed conflict;

The actus reus (physical) element

(iii) the perpetrator deprived civilians of objects indispensable to their survival, including by wilfully impeding relief supplies; and

The mens rea (mental) element

(iv) the perpetrator intended to starve civilians as a method of warfare.

A detailed analysis of the elements of the crime, including the crux of the offence, the specific intent to starve as a method of warfare, can be found here.

In a legal policy paper prepared by GRC and a forthcoming article in the Journal of International Criminal Justice, we conclude, that whilst the specific character of the intent to starve technically removes it from the scope of Article 30 of the Rome Statute, there are nevertheless substantial grounds to conclude that the same standards will be applied and as such that a knowledge-based approach will suffice to establish to intention to starve. In the case of starvation there appears to be no compelling reason to depart from the default position, set out in Article 30(2), that intent ‘in relation to a consequence’ can be established on either the knowledge or the purpose-based approach.

Furthermore, as there is no material element to prove the result of starvation, proof is required only of the perpetrator’s intention to starve, not of the fact that people did in fact starve as a result of the perpetrator’s acts or intentions. By not requiring proof of result of starvation, the definition of the crime is broadened to strengthen the protection. There is no need to wait to prove that people actually are starving. This increase of the protection of civilians would likely be nullified in part if the ulterior intent requirement would be construed in a manner more demanding than Article 30(2)(b).

For the purposes of this post I will focus on the central question often posed by civil society groups documenting and collecting on the ground and multilateral organisations engaged in accountability and analysis:

“how to identify the specific intent of the crime of starvation in a multi-causal environment?”

An intention to starve may develop extemporaneously in the course of otherwise lawful or unlawful conduct, in which case the task of the tribunal will be to disentangle the intention to starve from multiple coexisting purposes (whether lawful or unlawful). There are challenges with any trial, especially those that seek to describe joint action and criminal purposes that span hundreds of kilometres and the actions of hundreds if not thousands of combatants and civilians. Notwithstanding that, assessing an accused’s acts and conduct in the midst of complex, fluctuating circumstances and contributory factors as part of regional or even countrywide enterprises are the bread and butter of ICL.

In the legal policy paper, we set out a four-point guide which can serve as an index of intent in the context of starvation. Following these indices are likely to provide cogent evidence of a perpetrator’s intent, criminal or otherwise:

1. Awareness of the risk that an interference with objects indispensable to survival would lead to starvation (including whether the deprivation occurs in pursuit of an ostensibly lawful purpose);
2. Respect for the full range of relevant IHL prohibitions (e.g., the prohibition against terrorising the civilian population; the prohibition against collective punishment; the prohibition on the use of human shields and the prohibition against displacement);
3. The respect for IHL principles that create positive obligations applicable in the context of the conduct of hostilities; and
4. The concrete steps taken (or not taken) by the alleged perpetrator to ameliorate civilian suffering, particularly through the facilitation of access of the civilian population to objects indispensable to survival.

In assessing the four indices above, pertinent considerations will include: the nature, manner, timing and duration of any deprivations or attacks on civilians, including whether such attacks were long-term, persistent and/or indiscriminate; whether the attacks were widespread or perpetrated by single or many military components; and whether they took place as part of a campaign that systematically targeted the victims, including on account of their membership in a particular group. This analysis should encompass all relevant issues, including the general context, the repetition of destruction and discriminatory acts, attacks against civilians more generally, involving a range of modes of perpetration, the scale of those attacks, and relevant policies or speeches encouraging the targeting those civilians.

The challenge for any ICC prosecutor in an Article 8(2)(b)(xxv) case will be to discern whether the alleged perpetrator, whilst pursuing other lawful or unlawful purposes, such as attacking objects indispensable to the survival of the civilian population which are also used in supporting military action, or in besieging areas primarily to starve out combatants to hasten their surrender, nonetheless also intended to starve the civilian population as a method of warfare. In the event that the evidence establishes this criminal intent, the concurrent existence of other purposes will not insulate an accused from a finding of criminal responsibility. Notwithstanding that the process of disentangling these various purposes in order to ascertain an intent to starve is likely to be complex, these challenges are common across war crimes cases at the international and national level.

Conclusion

A starvation trial, whilst long overdue, is not the panacea, they are but one part of the journey. We must look more broadly at the full suite of transitional justice and accountability tools. However, we must first deal with the misconceptions surrounding starvation that conveniently lapse into inertia and fatalism, painting starvation as a force majeure, or due to climate or poverty, or even legitimate military action. None of these excuses stand up to scrutiny.

Notwithstanding our analysis of the crime and the clarity we aim to bring to practitioners, it is only when starvation enters the legal zeitgeist will prosecutions produce a more singular definition of the crime of starvation. Only once there is legal precedent on how to apply the law to the facts on the ground, will we have the tools to authoritatively understand the contours of the offence.