The Rome Statute and Hunger as a Weapon of War -  The Journey Towards Ending Impunity for Starvation Tactics

Introduction

The use of starvation is an ancient method of warfare which can be dated back for centuries. In 376 BC, during the Peloponnesian War, the Spartans employed this tactic against Athens[1] and this weaponisation of hunger is still an unfortunate reality in 2022. In recent and current conflicts, combatants have employed this tactic by disrupting the seasonal pattern of growing crops, displacing farming populations, or by destroying crops, farmland, or other food sources. Warring parties have also blocked humanitarian aid from reaching starving populations. Today, in 2022, not only is imposed famine a reality in many countries including Syria[2], Tigray[3], Yemen[4] and now Ukraine[5], but it is also a war crime.

Starvation as a War Crime

Geneva Conventions

The use of starvation of civilian populations as a method of warfare is prohibited by international law. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

The first significant step taken towards codifying the prohibition of starvation as a tactic of warfare was the adoption of the two Additional Protocols of 1977 to the Geneva Conventions,[6] which have been ratified by 174 and 169 states, respectively. The Geneva Conventions (“the Conventions”) refer to international agreements that are made up of four treaties and three protocols which define international legal standards for humanitarian treatment during conflict. Under the Conventions, not only is the starvation of civilians as a method of warfare prohibited, so too is the destruction of objects indispensable to the survival of civilian populations.[7]

The United Nations Security Council

Even though the Conventions have expressly prohibited starvation as a method of warfare since 1977, interestingly the United Nations Security Council (“UNSC”) has only recognised conflict-related food insecurity as a peace and security issue since 2018, when it adopted resolution 2417.[8] Significantly, the resolution makes no distinction between international armed conflict (“IAC”) and non-international armed conflict (“NIAC”), instead resolution 2417 underlines that the use of starvation of civilians as a method of warfare may constitute a war crime – irrespective of the conflict classification.

The Rome Statue and the International Criminal Court

In 1998, the adoption of the Rome Statute (“the Statute”) represented an unprecedented international effort to hold perpetrators of international crimes to account. The Statute established the International Criminal Court (“the ICC”) in the Hague, which has the jurisdiction to prosecute individuals for the mass atrocity crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. Currently there are 123 State Parties to the Rome Statute of the ICC. Under the Statute[9] the ICC has the mandate to prosecute and investigate the war crime of deliberate starvation, however, when it was adopted Article 8 only applied in the context of IACs. Therefore, when the ICC became operational in 2002, the vast majority of victims of intentional starvation had no recourse to the Court, due to the fact that most armed conflicts since World War II have taken the form of civil war, rebellions or other non-international contexts, falling into the category of NIACs.[10]

The exclusion of the criminalisation of deliberate starvation in NIACs was only rectified a year after the UN Security Council resolution 2417 was adopted. In 2019, the Assembly of State Parties to the ICC addressed this critical gap in the Rome Statute’s accountability infrastructure by amending the Statute to include the war crime in the context of NIACs. The amendment, which was tabled by Switzerland, strengthened international efforts to combat starvation in all conflicts and aligned the Rome Statute with international humanitarian law and customary international law.

Starvation Tactics in 2022

Current global hunger levels are alarmingly high, and the recent Global Report on Food Crises outlined that in 2021 they surpassed all previous records, with close to 193 million people facing acute food insecurity.[11] This surge pre-dates the ongoing Russia-Ukraine war, the effects of which are now reverberating across global food markets with devastating consequences. In April 2022, David Beasley, the head of the UN World Food Program, reported that Russian forces are also using food as a weapon of war in Ukraine and people are being starved to death, for example in the besieged city of Mariupol, which is in clear contravention of international law.[12]

The unfolding crisis in Ukraine is eerily reminiscent of the Holodomor, Stalin’s politically orchestrated starvation of millions of Ukrainians in the early 1930’s.[13] The number of people who died as a result of the Holodomor is uncertain. Timothy Snyder, Professor of History at Yale University, places the number at approximately 3.3 million[14], though some say the number was much higher[15], yet no one has ever been legally held to account. Putin’s reprisal of Stalin’s playbook in Ukraine begs the question of legal accountability for the war crime of starvation in the 21^st century.

Accountability for Starvation Tactics

Despite the criminalisation of intentional starvation and its abhorrent human cost, no prosecution of the crime has yet happened at the international level. There are several factors which may have contributed to the lack of prosecutions thus far. The omission of NIACs from the Rome Statute presented a glaring gap in the international legal instrument, as it has been established that most conflicts of the 21^st century fall under that classification, however the amendment and subsequent inclusion of NIACs has yet to be utilised.  

Furthermore, Article 8 (2) (b) (xxv) of the Rome Statute requires that a perpetrator must be shown to have intentionally used starvation a method of warfare. Countries plagued by conflict are often already dealing with the plethora of complex factors which exist in tandem with mass starvation and famine, such as food insecurity, malnutrition, and disease.[16] It is likely that the perceived difficulty in proving the intent element may perpetuate the belief that prosecutions for starvation are too difficult to secure. Catriona Murdoch of Global Human Rights Compliance[17] has suggested that to prove the intent requirement prosecutors may have to rely on evidence of blockades, as is happening in the case of Yemen[18], sieges of humanitarian workers, such as in South Sudan[19], or the cutting off of relief supplies, as exhibited in Syria.[20]

The fact that no prosecution has yet taken place also compounds this legal uncertainty[21] and the absence of precedence means that the practical contours of the crime are not yet clear. Furthermore, it is notoriously difficult to prosecute war crimes and therefore the ICC may be wary to test uncharted waters.

The intentional starvation of civilians has been codified as a war crime in the Rome Statute as a matter of treaty law and the application of treaty law is generally restricted to the parties of said treaty. This presents another challenge in overcoming impunity for war crimes as the Court has no jurisdiction over states which are not party to the Rome Statue, which includes states such as South Sudan, Syria, and Yemen.

One provision which mitigates this impediment is Article 13 (b) of the Rome Statute which stipulates that the United Nations Security Council can refer a situation involving atrocity crimes to the ICC. A referral from the UNSC empowers the ICC to investigate all four crimes under the Statute, without the consent of the states involved,[22] which is what happened in 2005 when the UNSC referred the situation in Darfur, Sudan to the ICC.[23] However, there are limitations to this referral power as any of the five Permanent Members of the Security Council[24] can veto a referral to the ICC, as was the case in 2014 when China and the Russian Federation both vetoed the referral of the situation in Syria to the ICC.

Alternatively, the Court may also gain limited jurisdiction when a non-state party accepts the ICC’s jurisdiction pursuant to Article 12 (3) of the Statute.

Accountability for Starvation Tactics in Ukraine

Neither Ukraine nor Russia are parties to the Rome Statute, therefore the ICC does not have jurisdiction over either state. In principle, the Security Council could refer the situation to the ICC, however, as Russia is a Permanent Member of the Council it is all but guaranteed that it would veto such a referral. In February 2022, Russia vetoed a resolution which would have condemned its unprovoked aggression against Ukraine.[25] 

Nonetheless, in 2014 Ukraine as a non-state party accepted limited jurisdiction of the ICC to prosecute crimes committed within its territory, through a declaration under Article 12 (3) the Rome Statute.[26] In February 2022, Karim Khan, Chief Prosecutor of the ICC, announced that he was opening an investigation into the situation in Ukraine, stating that the investigation will “encompass any new alleged crimes falling with the jurisdiction of [his office] that are committed by any party to the conflict on any part of the territory of Ukraine.”[27]

On 2 March 2022, Ireland, as part of a co-ordinated group of 38 states which are party to the Rome Statute[28] submitted a joint referral of the situation in Ukraine to the ICC in an effort to hold Russia accountable.[29] Indeed, accountability has been, and remains, one of the key priorities of Ireland’s tenure on the United Nations Security Council (2021-2022). In recognition of the 20^th anniversary of the entry into force of the Rome Statute, Ireland held an Arria-formula[30] meeting on 24 June 2022, during which Ambassador Geraldine Byrne Nason underlined that the veto, or indeed the threat of the use of the veto, is the primary barrier to realising the full potential of the Rome Statute. She called for the strengthening of the relationship between the ICC and the UNSC so that the two can effectively cooperate to end impunity for the most appalling crimes of concern to the international community.[31]

In April 2022, the Organization for Security and Co-operation (“OSCE”) in Europe released a report on violations of international humanitarian and human rights law, war crimes and crimes against humanity committed in Ukraine since 24 February 2022,[32] which details evidence of intentional starvation, among many other crimes. It is not yet clear which exact crimes the Court will consider but given the ongoing starvation tactics being utilised by the Russian Federation in Ukraine, this could present an opportunity for the ICC to hear its first case under Article 8 (2) (b) (xxv).

Conclusion

Despite the ancient roots of starvation as a war tactic, this offence has not yet been relegated to history and it remains a significant feature of modern warfare. In his celebrated account of the Peloponnesian War, Thucydides famously said, “The strong do what they can and the weak suffer what they must”,[33]- but must they? The development of international humanitarian law and international criminal law over the last fifty years has created a framework whereby perpetrators of the most atrocious crimes can be held to account. Intentional starvation of civilians is now well established as such a crime, yet a lack of international will has thus far allowed perpetrators to commit this atrocity with impunity. The recent recognition by the Security Council of this offence as a peace and security issue, [34]  as well as the subsequent amendment to the Rome Statute illustrates a building impetus from the international community to counteract this conduct from being treated as a peripheral issue and to ensure accountability.

Ukraine, alongside the international community, has already started collecting evidence to prosecute Russia and the relevant parties for war crimes committed in Ukraine and experts say that this may become the biggest collective effort in history to hold war criminals to account.[35] This strong demand for accountability and impressive documentation may represent an opportunity for the ICC to pioneer the first international prosecution of intentional starvation as a war crime. While recognising that starvation tactics are not being exclusively employed by Russia, trying such a case could set a crucial precedent and create the momentum for courts with relevant jurisdiction to prosecute the criminal use of starvation tactics in other conflicts, such as in South Sudan, Syria and Yemen.