Time to fix the Rome Statute and add the crime of starvation in non-international armed conflicts!

This week the Assembly of State Parties to the Rome Statute of the International Criminal Court (ASP) meets in The Hague for its 18^th session. On the agenda is the Swiss proposal to amend Article 8 (“War crimes”) of the Rome Statute by adding a non-international armed conflict version of the war crime of starvation of civilians as a method of warfare. The present post discusses the Swiss proposal and explains why it is high time to amend the Rome Statute as per the Swiss proposal, and that in fact the drafting history of the Statute shows that the omission to include this crime into Article 8(2)(e) was accidental, making it even more important to now fix this mistake.

In 1998, the States negotiating the Rome Statute included the war crime of “[i]ntentionally 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” in Article 8(2)(c), a paragraph that lists “serious violations of the laws and customs applicable in international armed conflict”, “[o]ther” than the grave breaches of the 1949 Geneva Conventions included in the first paragraph, which also concern international armed conflict (IAC). As readers will know, the question whether the Rome Statute should include war crimes committed in times of non-international armed conflict (NIAC) was hotly debated by the delegates in Rome. Fortunately, with the ICTY’s case law and the scope of the ICTR Statute having paved the way, the States reached consensus to include NIAC war crimes. Violations of Common Article 3 to the 1949 Geneva Conventions were listed in Article 8(2)(c), and a large number of the ‘other serious violations of the laws and customs applicable in times of international armed conflict’, listed in Article 8(2)(b) of the ICC Statute, were reproduced in Article 8(2)(e), which relates to NIAC. However, among the crimes that were not reproduced was the war crime of starvation and impeding humanitarian access.

The failure to do so has been criticised for good reason (e.g., Werle, Kress, and more recently, Bartels, and D’Alessandra and Gillett). In addition to the war crimes related to prohibited weapons (addressed below), the only other violations not included for NIAC are the conduct of hostilities crimes Article 8(2)(c)(ii), intentionally directing attacks at civilian objects, Article 8(2)(b)(iv), the crime of causing excessive collateral damage, and Articles 8(2)(viii), (xiv), and (xv). The last three provisions deal with occupation and “nationals of the hostile party”, and therefore obviously do not have a NIAC equivalent. The Additional Protocol I general prohibition to attack civilian objects and the prohibition to launch attacks that may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated, which both apply during IACs, do not appear in Additional Protocol II relating to NIACs. As a result, it was hard in 1998 for the proponents of a more extensive set of NIAC crimes to argue that these prohibitions constituted customary IHL also in time of NIAC, and no NIAC versions of these war crimes were included in Article 8 (see Bartels, pp 292-293). However, the foregoing makes the omission of a NIAC crime of starvation all the more puzzling, because Additional Protocol II does explicitly prohibit the starvation of the civilian population.

The ICC State Parties used the Review Conference of 2010 to rectify one of the other shortcomings of Article 8(2)(e), by agreeing to amend the Statute in accordance with a proposal by Belgium. In 1998, the weapon discussions mainly focused on nuclear weapons and as a result few specific war crimes related to the use of particular weapons were included. For NIAC, several states took the view that the prohibitions to use these weapons had not yet reached the status of customary international law and should therefore not be included in Article 8(2)(e) (Doermann, pp 346-347). In 2010, the debates on the crime of aggression took place at the same time, causing the Belgium proposal to receive limited attention. It was adopted without controversy. The initially “missing” NIAC war crimes of using certain prohibited weapons were thus included as (e)(xiii), (e)(xiv), and (e)(xv)), but the issue of starvation and denial of humanitarian access was not addressed in Kampala.

In the years that followed, the conflicts that raged made clear how problematic this omission was. In 2014-2015, the plight of the civilian population during the siege of Aleppo caused me to research the issue and call for an amendment to the Rome Statute. Soon after the conflict in Yemen erupted and – if the Syria conflict had not already sufficiently done so – impressed on the international community that starvation of the civilian population is not something of past medieval warfare, but one of the key problems in contemporary armed conflicts, especially those that are non-international in character. More research was done on the issue, a guidance was adopted on humanitarian relief operations discussing what constitutes arbitrary withholding of such relief, and further calls were made for adding a NIAC crime to the Rome Statute followed (e.g., Fatima and Global Rights Compliance).

Swiss proposal

In 2017, Belgium again managed to get an amendment to Article 8 on the employing of three other types of prohibited weapons, which was adopted for international and non-international armed conflicts. Yet, starvation was again not discussed. This changed in 2018. In May 2018, the UN Security Council adopted Resolution 2417, strongly condemning “the use of starvation of civilians as a method of warfare in a number of conflict situations and prohibited by international humanitarian law […][and] the unlawful denial of humanitarian access and depriving civilians of objects indispensable to their survival”.

However, the Netherlands (and the other penholders) had to water down the proposal put forward and the final preambular paragraphs of the resolution now only “[u]nderlin[e] that using starvation of civilians as a method of warfare may constitute a war crime” (emphasis added), without stating that this is the case for international as well as non-international armed conflicts. Also in 2018, Switzerland drafted a “non-paper” and an amendment proposal (see here: Annex III and IV) to test the waters whether the ASP was ready to discuss adding the NIAC war crime of starvation to the Rome Statute, but after three meetings of the ASP Working Group on Amendments, Switzerland ultimately “proposed to defer a decision on its proposal by the Assembly to its eighteenth session in order to allow for a thorough discussion in the Working Group.” (p. 3) This year, with the support of the Working Group, which recommends to the ASP to adopt the Swiss proposal as Article 8(2)(e)(xix), Switzerland is officially putting forward its proposal to amend Article 8 “to make starvation of civilians a war crime punishable before the ICC when committed in non-international armed conflicts” by adding the following crime:

“(xix) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies.”

The wording is slightly different from the IAC version, namely by leaving out “as provided for under the Geneva Conventions”. Since the NIAC crime is based on the prohibition to starve civilians included in Additional Protocol II and customary IHL, it would not make sense to refer to the Geneva Conventions. Switzerland explains to the other State Parties that adding this war crime “would codify existing international humanitarian law in the Rome Statute”, as “[s]tarving civilians is already a war crime under the Rome Statute in international armed conflicts. However, the vast majority of contemporary armed conflicts are non-international in nature. This gap in the Rome Statute leaves civilians vulnerable.”

Although this is correct, the situations in Syria and Yemen cannot be addressed by the new war crime, if adopted, as the amendment could not work retrospectively and both countries are not State Parties. Without a Security Council referral, the starvation of civilians during these conflicts is, in principle, outside the ICC’s jurisdiction. However, while these two conflicts may have attracted most of the attention, and put the issue on the agenda, starvation of civilians and denial of humanitarian relief occurs in many armed conflicts (see, for example, here and here).

It is therefore important for the amendment to be adopted. As Switzerland also notes, amending the Rome Statute would “strengthen the international legal framework” (p. 7), for example, by ensuring that ICC State Parties who ratify the amendment have to create domestic implementing legislation criminalizing starvation in NIAC, and “[i]t would send a strong signal to the victims” (p. 7). Hopefully, the ASP will recognise the need to amend Article 8. Certain Security Council members with invested interests in the Syrian and Yemeni conflicts are not ICC State Parties and can therefore not give similar pushback as with UN SC Res 2417. The NGO community is actively supporting the amendment (see, e.g., besides the important work done by Global Rights Compliance: Human Rights Watch, Amnesty International, FIDH, and the International Bar Association).

Accidental omission

Should the development of customary IHL since 1998, including the recent Security Council’s condemnations of starvation as a method of warfare, and the widely reported suffering of the civilian population in recent and ongoing conflicts not be enough for the State Parties, it may be useful for the delegates to recall that already in 1998 there was no good reason to omit the starvation as a NIAC war crime. This appears to have been the result of an unfortunate oversight.

The drafts for the ICC Statute prepared in the lead-up to Rome included a NIAC crime of starvation (see Bartels, pp 296-299). The so-called “Zutphen Draft” of a Statute for the International Criminal Court, as well as the draft agreed upon by the 1998 Preparatory Committee, included the wording of the current IAC crime and had an option to include the same language as a NIAC war crime. The discussions in Rome therefore took place on the basis of a draft that included a proposal to include the NIAC starvation war crime. Although various issues in relation to war crimes, and NIAC war crimes especially, were debated and noted down in the records, no specific discussion took place as to the inclusion of starvation as a NIAC war crime – at least, not one that was considered as warranting reflection in the official records. In fact, many delegations were actually in support of the inclusion of starvation as a NIAC crime (see Cottier (p. 459), who was present in Rome).

However, for some reason, the final version of the Rome Statute that was adopted on 17 July 1998 did not include the starvation crime in Article 8(2)(e). Naturally, the recollection of the drafters may vary. Based on their research, including speaking to (other) drafters, D’Alessandra and Gillett conclude that the starvation NIAC crime may have become “a ‘sacrificial lamb’ (along with others) in order to maintain a delicate compromise in the final draft”, but those consulted by the present author do not recall actual opposition to the inclusion of the NIAC version (see also Robinson and Von Hebel, p. 208) and consider that the non-inclusion may just have been an oversight. What is more, when consulting the papers of some of the drafters, and notes taken in Rome in the working group on the definition of war crimes, a possible reason for the oversight becomes apparent.

The proposed NIAC war crime of starvation was mentioned under “Option II” for possible inclusion under (what would become) paragraph (2)(e), together with two versions of the proposed NIAC version of causing excessive incidental damage, and a proposed war NIAC war crime of “slavery and slave trade in all their forms”. What ended up becoming 8(2)(c) and (e) was all listed, in more or less the words ultimately adopted, under “Option I”, which in itself included various option I and IIs. A drafter involved in the relevant working group recalls that the lists of war crimes agreed upon for IAC and those being negotiated for NIAC were not systematically compared, and no “check” was made to ensure that any war crime not appearing in (2)(e) was explicitly considered and excluded for cogent reasons. Instead, the NIAC list was discussed on its own.

Given the non-deliberate (and non-logical, since the IAC version was listed in a different group of crimes) placing in Option II, it is likely that the proposed NIAC war crime of starvation suffered the same fate as the proposed crimes of causing excessive incidental damage and slavery. The latter was included as crime against humanity and not discussed as a war crime, for either IAC or NIAC. And as noted above, the drafter agreed to leave the former out because there was no corresponding prohibition in Additional Protocol II. Starvation, which appears as the first bullet of Option II on the flipside of the page in the printed version of the papers used by the drafters (see here for a similar digital version), may simply have been overlooked when the drafters (literarily) crossed out, or even ripped out, the page containing the second, third, and fourth bullets. Indeed, the recollection of the drafters consulted, and the papers and notes used, supports such a conclusion. If indeed so, the non-intentional omission of this NIAC crime is even more a reason to now rectify the mistake made in Rome.

Conclusion

The above shows that there are no legal obstacles to address the unfortunate – and apparently accidental – omission in 1998 to include a non-international armed conflict war crime of starvation as a method of warfare in the Rome Statute. With the Swiss amendment proposal before it, this is the moment for the ASP to act. Although the use of exclamation marks generally has no place in academic writing (notwithstanding the name of the present blog), this call to the delegates at the ASP deserves one: fix the Rome Statute and add the crime of starvation in non-international armed conflicts!