A brief history of starvation as a ‘war crime’ | Explained

When and how was starvation recognised as a criminal act? What does the International Criminal Court say? Have countries been prosecuted for blockade-induced starvation? 

March 23, 2024 04:13 pm | Updated 05:51 pm IST

File photo: Displaced Palestinians wait to receive free food at a tent camp, amid food shortages, as the conflict between Israel and Hamas continues, in Rafah in the southern Gaza Strip on February 27, 2024.

File photo: Displaced Palestinians wait to receive free food at a tent camp, amid food shortages, as the conflict between Israel and Hamas continues, in Rafah in the southern Gaza Strip on February 27, 2024. | Photo Credit: Reuters

The story so far: A grim warning comes from Gaza’s officials: hunger ravages Palestine, as Israel’s siege cuts off food supplies. At least 20 children have died from malnutrition and dehydration, in what the UNICEF called “tragic and horrific deaths” that are “man-made, predictable and entirely preventable.” Aid agencies have warned that here, famine is “almost inevitable” unless Israel’s blockade is lifted and immediate assistance offered. In the last week, on two separate occasions, Israeli forces opened fire on Palestinians waiting for food trucks carrying flour in Gaza City. At least 100 people were killed and 700 injured.

Hunger in Gaza is not accidental. In December last year, Human Rights Watch found that Israel was using the starvation of civilians as a method of warfare in the region by deliberately denying access to food. Starvation is among the oldest weapons of war. From Roman times to modern wars, conflicts have created and capitalised on hunger for strategic gains. Adolf Hitler’s infamous ‘Hungerplan’ deprived 42 lakh Soviet citizens of food during World War II. Warring parties in Yemen have been accused of disrupting food systems and using starvation. Today, at least 70% of the world’s hungry people live in areas afflicted by war and violence, according to the World Food Programme.

Starvation is recognised as a ‘weapon of extreme mass violence,’ even a war crime, but forced starvation is in practice even today. It is outlawed, albeit ambiguously, due to a “striking” international legal history, according to scholars Nicholas Mulder and Boyd van Dijk. “The ban itself happened so late and appears still so incomplete,” they say, explaining why some forms of starvation are tolerated, and others forgotten.

An incomplete arc

Starvation found mention as early as 1863 in the Lieber Code during the American Civil War. President Abraham Lincoln had issued a doctrine of limits on hostilities, and specified that it is “lawful to starve the hostile belligerent, armed or unarmed” to “hasten on the surrender.” (The U.S. Department of Defence formally renounced this position in 2015.)

It wasn’t until half a century later, in 1919, that the international legal community placed prohibitions on starvation, still not fully outlawing it as a war crime. A report found the ‘deliberate starvation of civilians’ was a violation of the laws and customs of war, according to a committee set up by the United States of America, the British Empire, France, Italy, Japan and allied powers. The 1949 Genocide Convention and the Universal and Declaration of Human Rights did not specifically mention starvation. Thus a U.S military court ruled that the starvation of civilians during the siege of Leningrad was not criminal and hence not prohibited under the current international legal framework.

A subsequent legal battle unfolded between aid agencies and Western powers between 1945 and 1949, with the former advocating for formulating legal obligations to protect starving civilians. These would redefine the duty of occupiers, how much discretion they had in imposing blockades, and the role of humanitarian agencies – “each of these elements posing a direct threat to the Anglo-American argument for total blockade,” Mr. Mulder and Mr. van Dijk noted. These forces diluted provisions of the conventions, batting for hunger blockades in some form.

A decisive ruling came in 1977. Starvation as a tactic of warfare was codified with the introduction of two Additional Protocols to the Geneva Conventions Of 12 August 1949, and Relating to The Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977. The revised text now forbade, under Article 54 of the Convention, starvation as a method of warfare but also the destruction of objects indispensable to a civilian population.

The text read: “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 and 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.”

Later in 2002, the Rome Statute of the International Criminal Court came into effect and included starvation as a war crime only when committed within an international armed conflict. This was a limited legal recourse, for most victims of intentional starvation were situated in contexts of civil war, rebellions and non-international armed conflicts (NIACs).

A more recent codification came in 2018 when the United Nations passed the ‘landmark’ resolution 2417, condemning the starving of civilians as a method of warfare which “may constitute a war crime.” This was the first time the international body addressed the link between hunger and conflict. Efforts to rectify the gap within the Statute were made in 2019. Switzerland successfully tabled an amendment to include starvation as a war crime in the context of NIACs. The proposal was adopted and ratified by 11 countries. Amnesty International noted the revision in law “more accurately addresses contemporary conflicts” and “strengthen[s] the possibility for victims ...to access justice at the ICC”.

Still, scholars like Alex de Waal point out an absence of “a systematic study of famine perpetrators... there’s no comparative political scholarship on those who create famine and why.”

The arguments for and against ‘starvation crimes’

The legality of starvation came down to the concept and degree of blockade strategies in and around wars. Aid agencies such as the Red Cross, and sometimes neutral countries during WWII, wanted to eradicate hunger blockades, and endorsed the concept of ‘distinction’ between civilians and combatants.

The Allied countries, on the other hand, invoked military necessity to justify war-induced starvation under international law, scholars note. Countries questioned the broad scope of these proposed safety checks, wanted to retain discretion over blockades and stressed that it was the duty of the occupier to provide aid. Put differently, in trying to mitigate war, they “simultaneously used starvation as an instrument of war.” If aid agencies sought to condemn blockade as a ‘weapon of war’, Commonwealth delegates refuted this by expressing concern about “losing a ‘decisive’ weapon that would protect Western (and British imperial) interests in future conflicts,” Mr. Mulder and Mr. van Dijk argued. “The nature of blockade as a legalised construction explains why international law has found it so incredibly difficult to contain the deadly effects of the starvation that this policy often causes,” they added.

Global momentum in favour of legal checks grew around the late seventies, during the Nigerian Civil War. The federal government (a military dictatorship) imposed the two-and-a-half-year-long Blockade of Biafra, resulting in a famine where at least a million people died. Despite criticism, the government banked on international law, endorsed by Western nations, to enforce the blockade. The then-Commissioner of Finance Obafemi Awolowo said: “All is fair in war, and starvation is one of the weapons of war. I don’t see why we should feed our enemies fat, only to fight us harder.”

Legal scholars note these legal efforts in the 20th century were focused on restricting starvation, not outlawing it. They failed to “expose the hegemonic interests” surrounding starvation, and accepted, in essence, the “legality of enforcing deprivation against civilians.” Notably, no prominent legal institution or deliberation raised the question of famines occurring outside Europe and in colonised countries, in Bengal or across the Pacific.

“Where there is not immediate death and destruction by bombs and bullets, the deliberate use of hunger as a weapon of war...[resulting] in a lifetime of trauma and undermining the prospects for peace and reconciliation, possibly for generations. ”Professor Julian May and Carla Bernardo

The prosecution challenge

There is yet to be a prosecution for the crime of starvation in the international legal landscape.

The European Parliament in December 2022 recognised the mass starvation in Ukraine under Soviet leader Josef Stalin in the 1930s as a war crime and an act of genocide. Some countries have included starvation-linked war crimes in their domestic criminal codes, including Ethiopia, Cambodia, Germany, and Rwanda, among others. Without a defined scope of crime, starvation in the international setting could be prosecuted as torture, an act of genocide, murder, or extermination. In 2016, the International Criminal Tribunal for the former Yugoslavia convicted Bosnian Serb politician Radovan Karadžić of genocide and a crime against humanity for the “inhumane treatment” of prisoners. Some were subjected to such poor conditions that they died from starvation and exhaustion, the Tribunal noted.

Starvation, although the most recently codified, is also a “largely untested war crime,” scholar Tom Dannenbaum argues in a 2022 paper. One reason is Western influence. The same countries that pushed for hunger blockades as a war strategy also played a role in the shaping of international law that would come to decide the severity of these crimes. Under Article 8(2)(b)(xxv) of the Rome Statute of the International Criminal Court, there are four factors to prove the crime: that the conduct happened in an international armed conflict; that the perpetrator was aware of the war; that they deprived “civilians of objects indispensable to their survival, including by wilfully impeding relief supplies”; and that the perpetrator “intended to starve civilians as a method of warfare.”

There is a “lack of clarity” in these legal elements, a Global Rights Compliance policy paper noted.

For one, they are vague, non-specific and sway attention away from blockades. The drafters did not specifically define starvation and instead, focused on the deprivation of “objects indispensable to survival” to prosecute a war crime. These objects could include blankets, medicines, bedding, water or food. Any legal assessment of what is indispensable will vary and be context-specific: the needs of a South Sudanese child will differ from a pregnant woman suffering from malnutrition in Palestine. The final definition criminalises deaths and diseases resulting from a lack of food, medicines and other essentials, but not activities and policies that directly result in the death of civilians.

Two, the legal framework is also contradictory: it specifies starvation as a war crime only in international armed conflicts, not domestic or civilian wars. From Yemen to South Sudan, most instances of starvation occur in the context of non-international armed conflicts. This dissonance means people will “be denied access to international justice” under the current Rome Statute, Article 8 framework. A United Nations-affiliated Independent International Commission on Syria in 2021 held the Syrian government accountable for “modern-day sieges in which perpetrators deliberately starved the population along medieval scripts.” The Human Rights Watch found the government and Opposition guilty of using a ‘surrender or starve’ strategy. In Sudan, conflict is “hampering the delivery of supplies” and both the army and RSF paramilitary were accused of obstructing aid, the World Food Programme said recently.

Three, starvation crimes are harder to prosecute, in comparison to, say, murder or enslavement, because of a perceived distance between the perpetrators’ actions and the impact on victims. The requirement of proving intention in court has “contributed to the misconception that prosecutions for starvation are too difficult and accountability unattainable,” deterring countries from pursuing such cases.

As such, there is “little or no meaningful attempt to prosecute the offence at the international or national level,” the paper noted.

Rethinking the crime of starvation

There is a deeper flaw in how starvation is perceived, prosecuted and penalised. Scholars like Alex de Waal argued that starvation has been ‘miscategorised’ as a natural phenomenon or as a lamentable byproduct of conflict. It is, however, “a process of deprivation that occurs when actors impede the capacity of targeted persons to access the means of sustaining life,” Mr. de Waal and Bridget Conley wrote in a 2020 paper.

They enumerated at least nine reasons for why perpetrators use starvation in war: (i) extermination or genocide; (ii) control through weakening a population; (iii) gaining territorial control; (iv) flushing out a population; (v) punishment; (vi) material extraction or theft; (vii) extreme exploitation; (viii) war provisioning; and (ix) comprehensive societal transformation.

Mr. de Waal and Ms. Conley argued for reinterpreting hunger in conflict as ‘starvation crimes’ to attach intent to action, and to capture the sustained criminal nature of acts over long periods. “Implicit in ‘starvation crimes’ is that starvation is produced by leaders’ decisions and serves political, military or economic goals,” they wrote.

“The legal framework has been unable to “understand the link between conditions of life that bring about the physical annihilation of the group and the policy decisions that bring about such conditions”.”Scholar Sheri Rosenberg

In Gaza, farmers are required to show passes to enter and tend to their land; many have died during the ongoing seige as they are unable to tend to their crops and livestock, aid agencies report. In Ukraine, Russia has attacked grocery stores and farmlands and blocked wheat-laden ships. The famine that struck parts of Tigray, Wollo and Eritrea during the Ethiopian Civil War in the 1980s was a result of government policies, including trade restrictions and the bombing of markets, according to Human Rights Watch. A 2021 report noted that in Yemen, warring parties targeted irrigation infrastructures, fishing boats and water facilities, disrupting food systems that had “devastating impacts on food and nutrition security.” Gaza’s Ministry of Health called the recent attacks on civilians waiting for aid delivery “systematic genocide crimes targeting hundreds of thousands of hungry stomachs.” Mr. Dannenbaum in 2023 argued that Israel’s “complete siege on Gaza...may also satisfy the legal threshold for the crime against humanity of inhumane acts” and “other crimes against humanity, such as those relating to killing (murder and extermination)“.

Scholars including Mr. Dannenbaum have pushed for a more informed, diligent definition of starvation crimes. They should focus on the “act of deprivation, rather than the outcome it produces,” he notes.

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