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The Crime of Starvation and Methods of Prosecution and Accountability

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I. INTRODUCTION

  1. Every instance of famine or acute food insecurity today is, at its core, man-made. This paper explores the paths to prohibition and accountability for the widespread and systematic death and suffering that it causes worldwide, with a focus on criminal prosecutions.1 The current scale of suffering and death caused by, or associated with, this crime is unprecedented in recent history. The famine in Yemen alone threatens to be the most severe in living memory. Starvation has a compound effect on international peace and security surpassing the (atrocious) death tolls: mass displacement and social disruption,2 intergenerational physical and cognitive harm,3 and severe economic deprivation4 are only a fraction of the terrible consequences visited upon the unfortunate victims.

  2. The United Nations (UN) Security Council (SC) Resolution S/RES/2417 (UNSC 2417) championed by The Kingdom of the Netherlands, and passed unanimously in May 2018, is the UNSC’s response to the re-emergence of famine and the burgeoning humanitarian crisis. It 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. Global Rights Compliance jointly with the World Peace Foundation lead the project ‘Mass Starvation: Testing the Limits of the Law’,5 the project is aimed at support of UNSC 2417, how to increase accountability and render starvation morally toxic. The present paper’s themes are based upon the project’s predicate objectives, including clarifying the contours of the crime and advocating for appropriate prosecutions.

  3. We are at the start of a long road to the effective criminalisation of starvation. The use of starvation of civilians as a method of warfare was prohibited under international humanitarian law (IHL) in the Additional Protocols of 1977,6 a conduct that has been prohibited and criminalised also under customary international law (CIL).7 Prohibiting conduct as a matter of IHL is one thing, but an effective route to criminal accountability for violation of those prohibitions presents altogether different challenges. Man-made starvation continues to be inflicted upon civilians, notably in the ongoing conflicts in Yemen, Syria and South Sudan.8 An examination of these conflicts suggests that starvation has re-emerged as a significant feature of modern warfare. As our examination in three separate country case studies shows,9 starvation in these conflicts is entirely man-made and has catastrophic humanitarian consequences for those civilians already suffering the blight of war. Despite these causes and consequences, there have been little or no meaningful attempt to prosecute the offence at the international or national level.

  4. There are of course many factors that might explain (albeit not justify) the ongoing neglect and the lack of effective criminal accountability for man-made starvation. As discussed in this paper, three stand out as particularly pertinent to this modern-day judicial malaise. These are:

(i) A gap in the available International Criminal Court (ICC) law, namely the lack of a specific provision criminalising starvation in non-international armed conflicts (NIACs) under the Statute of the ICC (the Rome Statute). This gap threatens the protection of civilians and prevents international criminal prosecutions in almost all of the current conflicts where starvation is being used;

(ii) A lack of understanding of the terms of the crime of starvation pursuant to Article 8(2)(b)(xxv) of the Rome Statute, and how it will operate in practice. This includes a lack of clarity concerning the meaning of its basic elements, including the requirement that the alleged perpetrator be shown to have ‘intentionally used starvation as a method of warfare’. This appears to have contributed to the misconception that prosecutions for starvation are too difficult and accountability unattainable;

(iii) Uncertainty concerning which conduct might amount to the crime of starvation, particularly which acts provide evidence of criminal intent. Law requires usage in courtrooms before it may become a focus of judicial consideration, expert debate and evolution and thereafter a useful tool for accountability. In the absence of prosecutions at the international level, much remains to be done to delineate offending conduct, especially when it arises in the midst of apparently lawful conduct that appears to permit interference with humanitarian supplies.

  1. In order to explore these issues, which appear to have significantly inhibited judicial action to prevent, prohibit and punish the crime of starvation, this paper is divided into three sections: policy; law; and, practice.

  2. The Policy Section (paragraphs 10 - 14) is aimed principally at the significance of the amendment to the Rome Statute to allow the Article 8(2)(b)(xxv) crime to be prosecuted in NIACs as proposed by the Government of Switzerland to the Working Group of the Assembly of State Parties to the ICC in 2018. It outlines how support for the proposal will narrow the apparent impunity for those perpetrating starvation, enable redress for victims, and strengthen the fundamental protection of civilians and civilian objects.

  3. The Law Section (paragraphs 15 - 84) is primarily for those seeking to understand the substantive law, including legal practitioners and humanitarians. This paper drafted by leading legal practitioners10 and academic experts11 purports to distil the elements of the Article 8(2)(b)(xxv) crime.
    The authors analyse the elements of the crime of starvation through the relevant international legal frameworks, including IHL and International Criminal Law (ICL). This section seeks to bring legal clarity to a much-neglected offence.

  4. The Practice Section (paragraphs 85 - 127) is aimed at a range of practitioners including: humanitarians delivering aid into conflict-affected areas; investigators collecting and documenting information for accountability efforts;12 policy makers seeking to maintain political pressure on belligerent states and warring parties; and legal practitioners seeking to apply the law. This section seeks to bring clarity to the applicable legal framework, detailing how the conduct of warring parties and individuals may constitute a starvation violation. It addresses four key topics: (i) the use of specific modes of responsibility in leadership cases (likely to be prosecuted at the ICC); (ii) challenges arising from the need to map causation (i.e. the connections between the alleged perpetrator’s acts and omissions and deprivation of objects indispensable to the survival of the civilian population (OIS) and any consequential adverse impacts upon civilian populations); (iii) the role of direct and indirect (circumstantial) evidence in establishing the elements of the offence, particularly the intent requirement; and (iv) the likely approach to evidence and proof of the offence in relation to two distinct scenarios: where the deprivation of OIS occurs in pursuit of an unlawful purpose and where it occurs during the pursuit of a lawful purpose (including sieges and blockades).

  5. The paper concludes with the next steps for moving the crime of starvation into the realm of the impermissible. As the discussion in the various sections of this paper shows, much needs to be done to ensure a common understanding of the crime in order to advance the prospect of prosecutions.
    However, as finally discussed, prosecutions are not a panacea; they must be viewed as part of a process and be situated in a range of alternative remedies as envisaged in UNSC 2417, which together must be deployed to ensure that starvation is viewed as an intentional act and a morally toxic one.