1. Introduction
In 2014, the United Nations Secretary-General reported that in Syria, during a time span of one month, ‘medical supplies that would have assisted 216,015 people in hard-to-reach and besieged areas were either removed from convoys, or the convoys were not allowed to proceed’.Footnote 1 The problematic humanitarian access during the non-international armed conflict in Syria does not stand on its own. The majority of today's armed conflicts are non-international in character. In addition to Syria, the situations in South Sudan and the Central African Republic also illustrate that humanitarian aid and relief operations are often impeded in such conflicts.Footnote 2 The problems that humanitarian actors face are partly the result of the often chaotic and unorganised nature of the violence in these types of conflict.Footnote 3 However, access to populations in need is also frequently withheld by one or more of the warring parties, seemingly on purpose.Footnote 4 During conflicts that are fought along ethnic and/or religious lines, one side may wish to deny access to humanitarian aid to the civilians who are seen as belonging to the opposing side, yet share the same nationality.Footnote 5
The main international humanitarian law (IHL) instruments pertaining to international armed conflicts prohibit the starvation of civiliansFootnote 6 and include obligations to allow humanitarian relief operations to access those in need of assistance.Footnote 7 Additional Protocol II, applicable to non-international armed conflicts, includes a weaker provision that requires the consent of the state on the territory of which the relief operations are to be carried out.Footnote 8 However, according to the International Committee of the Red Cross (ICRC), the obligation of parties to the conflict to ‘allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need’ applies equally to both types of conflict.Footnote 9 Indeed, as famously held by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Tadić, ‘[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’.Footnote 10
Before this ruling and the inclusion of serious violations of IHL in the Statute of the International Criminal Tribunal for Rwanda (ICTR),Footnote 11 which applies to a situation that the drafters of the statute considered to be a non-international armed conflict,Footnote 12 it was long considered that war crimes could be committed only during an international armed conflict.Footnote 13 There existed no equivalent to the grave breaches provisions, which compelled states to prosecute persons who had committed atrocities during conflicts of an internal nature. As no international criminal enforcement mechanism was envisioned for such crimes committed in non-international armed conflicts, despite constituting prohibited acts under IHL, they were not war crimes strictly speaking, but merely crimes under national law. Nevertheless, according to the aforementioned Tadić decision, Common Article 3 and (parts of) Additional Protocol II constituted customary international law and gave rise to individual criminal responsibility.Footnote 14 The ruling was positively received.Footnote 15 It paved the way for the inclusion into the material jurisdiction of the International Criminal Court (ICC) of the majority of the serious violations of IHL that were recognised as war crimes when committed in times of international armed conflict, now also for non-international armed conflicts.Footnote 16
Indeed, the Rome Statute of the ICC (ICC Statute)Footnote 17 gave a ‘final seal of approval’ to the advancement of individual criminal responsibility for serious violations of IHL applicable to the latter types of conflict.Footnote 18 It may therefore come as a surprise that the delegates at the Rome Conference for the establishment of the ICC did agree to include the serious matter of impeding humanitarian access as a war crime when committed in times of international armed conflict,Footnote 19 but did not include the same conduct as a crime for non-international armed conflicts. Although most 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 covers non-international armed conflicts,Footnote 20 the 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’Footnote 21 was not.Footnote 22 The failure to include this war crime for non-international armed conflicts has been criticised for good reason.Footnote 23 However, while the state parties used the ICC Statute Review Conference of 2010 to rectify one of the other shortcomings of Article 8(2)(e)Footnote 24 – namely by agreeing to include the ‘missing’ non-international armed conflict war crime of using prohibited weaponsFootnote 25 – the issue of humanitarian access received no attention in Kampala.Footnote 26
Equally troubling is that while the ICTY – which has jurisdiction over a non-exhaustive list of serious violations of IHLFootnote 27 – was able to address the intentional blocking of humanitarian aid as a war crime, irrespective of the nature of the armed conflict in the cases concerned,Footnote 28 it is nearly impossible, under the existing framework, to prosecute before the ICC the blocking of humanitarian operations as a war crime when carried out in times of non-international armed conflict. The present contribution addresses this dilemma and proposes a solution.
To that extent, and in order to understand the requirements that the proposed war crime for non-international armed conflict should fulfil, this contribution first highlights some of the challenges in prosecuting (before the ICC) the denial of humanitarian access as a war crime when committed in times of international armed conflict.Footnote 29 It then discusses the drafting history of the ICC Statute and sets out the reasons why no non-international armed conflict equivalent exists in the ICC Statute, followed by a discussion of whether charges for the same behaviour can (partially) be brought under other war crime provisions included in Article 8(2)(c) or (e) of the ICC Statute. As it is found that those provisions would not properly capture or fully address the criminality of the actual conduct, the article then examines whether the blocking of humanitarian access can be prosecuted as a crime against humanity and genocide. It concludes with a proposal for the next ICC Review Conference to modify the text of Article 8(2)(b)(xxv) and to adopt starvation of the civilian population and the denial of humanitarian access as a war crime in non-international armed conflicts.
2. The Denial of Humanitarian Access as a War Crime in International Armed Conflict
Historically, siege warfare, during which the entire population of a city was subjected to starvation, was not prohibited and indeed was generally practised during the conduct of wars.Footnote 30 The Lieber Code went so far as to suggest ‘throw[ing] the burden of war … on the disloyal citizens’Footnote 31 and permitted the starvation of ‘the hostile belligerent armed or unarmed’.Footnote 32 At the beginning of the twentieth century, the Hague Regulations prohibited pillage and mandated that certain buildings must not be fired at during a siege,Footnote 33 but did not mention anything about persons subject to a siege. Indeed, in the High Command case, the United States Military Tribunal confirmed the lawfulness of siege warfare. The judges regretted not being able to find otherwise, but held that the German use of artillery to prevent the civilians from fleeing the siege of Leningrad was not a crime.Footnote 34 Certain provisions of the 1949 Geneva Conventions, including the provisions that obliged free passage of humanitarian relief action as well as food and medical supplies, limited the ability to lay siege and thereby affect the civilian population.Footnote 35 In 1977, Additional Protocol I strengthened this protectionFootnote 36 and specifically stated that starvation as a method of warfare was prohibited.Footnote 37 As a corollary, passage of humanitarian relief convoys must be allowed if denial of such passage would result in the starvation of those affected.Footnote 38 However, siege warfare itself is still permitted as long as the objective is military in nature.Footnote 39
2.1. The Crime of Starvation as Included in the ICC Statute
The phrases ‘humanitarian access’ or ‘humanitarian assistance’ cannot be found in the ICC Statute. Yet, the denial of such access/assistance is precisely what is meant by Article 8(2)(b)(xxv), which lists among ‘serious violations of the laws and customs applicable in international armed conflict’Footnote 40 the act 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’. The scope of the crime is much broader than starvation in the strict sense.Footnote 41 Indeed, the draft text first read ‘starving of the civilian population and prevention of humanitarian assistance from reaching them’.Footnote 42 Illustrative of the form of relief is the agreement amongst the drafters of the Elements of CrimesFootnote 43 that, although the second element specifically requires the intent ‘to starve’, the deprivation of objects indispensable to survival, referred to in the first element, included not only food and drink, but also medications and, in case of very low temperatures in a region, blankets.Footnote 44
Article 8(2)(b)(xxv) of the ICC Statute is a combination of the prohibition of starvation found in Article 54 of Additional Protocol I and general provisions relating to relief in favour of the civilian population, such as Article 23 of Geneva Convention IV of 1949 and Articles 70 and 71 of Additional Protocol I.Footnote 45 Geneva Convention IV and Additional Protocol I also contain positive duties for an occupying power to provide relief to the civilian population in occupied territories, or to allow the free passage of humanitarian aid.Footnote 46 In general, combining underlying prohibitions to create a single crime is not ideal. This is so because when these prohibitions are found in different treaties and serve different purposes, combining them can negatively affect the strength of a criminal prohibition.Footnote 47 Moreover, as will be discussed below, the combination of language derived from the 1949 Geneva Conventions and the 1977 Additional Protocols raises specific questions.Footnote 48
2.2. Challenges for the Prosecution of Starvation
The wording of Article 8(2)(b)(xxv) of the ICC Statute, as well as the general legal framework of the ICC, creates challenges for prosecuting denial of humanitarian access as a war crime. Such challenges include, but are not limited to, the relatively high threshold of ‘starvation of civilians’. With respect to the relevant provision of Additional Protocol II, the ICRC Commentary on the 1977 Additional Protocols defines starvation, by reference to a dictionary, as ‘the action of subjecting people to famine, that is extreme and general scarcity of food’.Footnote 49 The commentary to the related provision of Additional Protocol I appears to set a lower bar, as starvation is considered to consist of the suffering of hunger. At the same time, the addition that ‘[s]tarvation is referred to here as a method of warfare, that is, a weapon to annihilate or weaken the population’, indicates a similarly high threshold.Footnote 50
Furthermore, IHL requires consent from the party in control of the territory concerned in the case of international armed conflicts, or of the state in the territory of which relief operations would take place in the case of a non-international armed conflict.Footnote 51 In addition, IHL grants the warring parties several lawful options to (temporarily) restrict the provision of humanitarian aid. In a commentary to the Additional Protocols, it has been submitted in this regard that consent may be refused only for ‘valid and compelling reasons’, which ‘may include imperative considerations of military necessity.Footnote 52 But there is no unfettered discretion to refuse agreement, and it may not be declined for arbitrary or capricious reasons’.Footnote 53 Indeed, nowadays it is ‘generally accepted that although the consent of the affected state to relief actions is required, it may not be arbitrarily withheld’.Footnote 54 However, it is far from clear what actually constitutes arbitrary withholding of consent.Footnote 55 The level of debate by academics illustrates the likelihood of discussion of this topic in the courtroom, and highlights the challenges that any criminal prosecution would face on the refusal to give such consent.Footnote 56 Furthermore, for as long as consent remains essential, ‘authorities can usually find plausible excuses for delaying humanitarian assistance’.Footnote 57 Such delays may have serious consequences, as a person can survive for some time without food, but without drinking water or medication the time period is significantly less. In addition, (part of) humanitarian goods are often seized by one of the warring parties as a pay-off to let the goods pass. It has been questioned what level of relief supplies have to be diverted to the opposition for a party to legitimately deny the deliverance of relief.Footnote 58 One author considers that it is only when an ‘excessively large portion of aid’ is diverted to the opposition that access could be denied,Footnote 59 but this threshold appears to be far too high – especially in the context of a criminal trial.
It is significant, too, that the prohibition against starving the civilian population as a method of warfare could be considered absolute,Footnote 60 but the prohibition against attacking objects indispensable to the survival of the civilian population in fact allows for derogation. For example, foodstuffs or drinking water installations may be attacked ‘when required by imperative military necessity’ for a party to defend its own national territory.Footnote 61 Rather than attacking existing objects indispensable to the survival of a civilian population, a party to a conflict can also prevent new objects from reaching the population. The San Remo Manual dealing with naval warfare specifies that a naval blockade would be prohibited ‘if it has the sole purpose of starving the civilian population or denying it other objects essential for its survival’.Footnote 62 Conversely, if a blockade is established for military reasons – for example, to prevent the supply of weapons to the enemy – and starvation occurs as a side effect, it would, according to the Manual, be prohibited only when the expected starvation would be excessive in relation to the military advantage anticipated to be gained by the blockade.Footnote 63 The required criminal intent (mens rea) to cause starvation as a war crime is discussed in more detail below.
The underlying prohibition to starve a civilian population as a method of warfare assumes that the alleged perpetrator commits certain acts in order to actively deprive the civilians of objects indispensable to their survival: for example, by actively attacking foodstuffs or by poisoning wells. The addition that the crime can also be committed by the wilful impediment of relief supplies strengthens the idea that active behaviour is required;Footnote 64 this includes, for example, physically preventing humanitarian convoys from reaching the civilian population. One wonders, then, whether the crime can also be committed as a result of an omission, such as the refusal of consent to the humanitarian organisation wishing to provide humanitarian aid, or not entering into an agreement on a ceasefire or a so-called humanitarian corridor, which would allow humanitarian assistance to reach a population in need.Footnote 65 The ICC Statute is silent on omission liability. For its part, the ICTY found that such liability exists under customary law, but the ICC does not necessarily follow the ICTY with regard to liability.Footnote 66 The academic literature is divided on this matter.Footnote 67 Moreover, a draft article that would have criminalised omissions was dropped by the drafters.Footnote 68 During the drafting of Article 22 of the ICC Statute, dealing with the principle of legality, the chairman of the relevant working group proposed the current language of the first paragraph of this article, which contains the word ‘conduct’.Footnote 69 The chairman observed that ‘[t]he term “conduct” was generally accepted to denote a criminal act or omission in order to avoid the problem which some delegations had with the idea of omissions being criminal on a par with acts’.Footnote 70 However, on the basis of that information, one could also conclude that ‘liability for omissions was not categorically excluded by the drafters’.Footnote 71 It has further been suggested that the Elements of Crimes deliberately avoid the term ‘acts’ in favour of ‘conducts’, as is also the case with the third element for Article 8(2)(b)(xxv), because ‘conduct’ would include both acts and omissions.Footnote 72 Moreover, although the Elements of Crimes may merely serve to ‘assist’ the judges of the Court,Footnote 73 they thus far have been followed quite diligently.Footnote 74
With regard to the required intent and knowledge, Article 30 of the ICC Statute provides that ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge’. Such intent would be relatively clear when it concerns a (prohibited) attack on, for example, a humanitarian convoyFootnote 75 or on the water supply. However, the intent to cause and knowledge of the consequence may be less clear in a case of denial of humanitarian assistance. If heavy fighting is taking place in an area where the civilian population is also in need of humanitarian aid, a party may not consent to humanitarian relief operations being undertaken, or to a request for the fighting to be temporarily ceased to allow for such relief operations. This denial could be for military reasons, such as the possibility of achieving a speedy victory or to prevent the enemy from having a chance to regroup. In addition, humanitarian organisations may be unwilling to enter the area because of the security situation. In these cases, it is difficult to see how the mens rea requirement would be met. Moreover, the language of the first part of Article 8(2)(b)(xxv) would allow for criminal responsibility if the perpetrator was aware that starvation would occur ‘in the ordinary course of events’.Footnote 76 However, the use of ‘wilful’ in the second part of the article could suggest that this standard does not apply to impeding relief supplies.Footnote 77
Moreover, it is important to note that only the starvation of civilians as a method of warfare is prohibited.Footnote 78 The scarcity of provisions during times of conflict inevitably subjects civilians to some form of deprivation. In addition to the effects of the general warfare impacting on civilians, for example, ‘if civilians through fear of military operations abandon agricultural land or are not prepared to risk bringing food supplies into areas where fighting is going on’,Footnote 79 specific military operations may also result in starvation. It is important to carefully assess actions which lead to starvation, however, ‘for what may seem to be an incidental effect of an armed conflict may prove to be a covert method of combat’.Footnote 80 The incidental starvation of a civilian population caused by military operations, for example, as a result of ‘cutting off enemy supply routes which are also used for the transportation of food’,Footnote 81 does not in itself violate IHL.Footnote 82 Rather, the relevant party should allow and facilitate humanitarian assistance for the said population.Footnote 83 In such situations, it is unlikely that charges would be brought for starvation of the civilian population. Nevertheless, it serves to show the difficulty in bringing any charges related to conduct that did not involve actual attacks on objects indispensable to the survival of the civilian population.
Another aspect of the crime of starving the civilian population which requires a careful assessment of the conduct, as well as evidence showing specific intent to cause starvation,Footnote 84 is the fact that, as one of the few war crimes included in the ICC Statute,Footnote 85 Article 8(2)(b)(xxv) has no result requirement.Footnote 86 The United States had proposed including an element that required that ‘as a result of the accused's acts, one or more persons died of starvation’, but no such element was adopted.Footnote 87 The death of one or more civilians from starvation thus does not need to have occurred. This is, of course, a positive aspect of the crime, as it means that if the prosecution manages to prove the intent to starve civilians on the part of the accused but, for some reason,Footnote 88 fails to show that civilians in fact starved, a conviction for the crime may still follow. It also allows the prosecution to focus on proving intent and not spend too many resources on proving the result. Moreover, the civilian population need not have starved for the prosecution of those responsible for denial of humanitarian access to take place.Footnote 89 However, without there being a result, a crime is also more difficult to prove. When would something actually qualify as starvation? How many humanitarian convoys have to be blocked before it can be considered an attempt to starve the civilian population? Should convoys carrying medication be differentiated from those carrying food supplies? It would appear that it can be determined only on a case-by-case basis when the threshold is met. The following salient example shows just how fine the dividing line may be. According to a government document, made public upon request by a non-governmental organisation,Footnote 90 Israel assessed the minimum number of calories needed per adult in order ‘not to starve’ and allowed food convoys into the Gaza Strip on the basis of the calculated figure.Footnote 91
In addition to the foregoing, the value of the crime of intentionally causing starvation, as criminalised by Article 8(2)(b)(xxv), may be impaired by the language used. Starvation can be achieved, inter alia, by ‘wilfully impeding relief supplies as provided for under the Geneva Conventions’.Footnote 92 The ICC Statute's reference to the Geneva Conventions is ambiguous, as both the prohibition against starvation and the most robust provision on relief supplies are found in Additional Protocol I. It is not clear whether this phrase includes relief supplies as provided for under the said Protocol.Footnote 93 It is submitted here that the mention of the Geneva Conventions should be understood as referring to the Geneva Conventions framework; this includes the two 1977 Protocols, which are additional to the 1949 Conventions.Footnote 94 For a situation of international armed conflict, the relevant provisions of Additional Protocol I would then also be applicable. The author acknowledges, however, that the language of Article 8(2)(b)(xxv) allows for the argument to be made that the enhanced protection of Additional Protocol I is not applicable. Indeed, during a criminal trial the defence is likely to advocate a narrow reading and a chamber may reason that the provision should be interpreted in a restrictive manner, thereby including only the more limited relevant provisions of the 1949 Geneva Conventions. The reference to ‘Geneva Conventions’ is further unfortunate in light of the UN Security Council's authority to impose the duty on states to allow access for humanitarian relief.Footnote 95 As the Security Council is nowhere mentioned in the Geneva Conventions, they would not ‘provide’ for the aforementioned duty, which raises the question whether in these situations the humanitarian relief may be impeded without falling within Article 8(2)(b)(xxv). In light of these possible limitations resulting from the wording of the ICC Statute, it is worth noting that the German legislation implementing the ICC Statute has rectified this anomaly: the crime, as included in the Code of Crimes against International Law 9 (Völkerstrafgesetzbuch), criminalises the impeding of relief supplies in contravention of the entire body of IHL.Footnote 96
Of further interest to note is that, as with all criminal trials, for an accused to be found guilty, proof beyond reasonable doubt is required.Footnote 97 Such proof has to be based on evidence brought before the relevant trial chamber. The burden of proof lies with the Office of the Prosecutor,Footnote 98 which has to show that any alleged reasons for denying humanitarian access were not legitimate. That necessarily means that these reasons must be known. It will normally be difficult to find members of the armed forces, allegedly responsible for blocking access or arbitrarily withholding consent, willing to testify. However, the other side, which would be able to testify as to the reasons provided for withholding consent, consists of employees of humanitarian organisations. It is therefore interesting to note that the employees of one of the key humanitarian organisations, the ICRC, are in principle exempted from testifying pursuant to rule 73(4) of the ICC's Rules of Procedure and Evidence.Footnote 99
On the basis of the foregoing, it can be concluded that prosecuting someone for the war crime of starvation of civilians, committed in times of international armed conflict, inter alia, by denying them humanitarian assistance, is no easy task. However, and as discussed next, as the ICC framework does not include such a war crime for non-international armed conflicts, prosecuting similar conduct in the latter type of conflict is far more problematic.
3. Prosecuting Denial of Humanitarian Access in Non-International Armed Conflicts
Much of today's armed violence is carried out by armed groups that lack a clear structure and hierarchy.Footnote 100 In addition, these non-state actors have become increasingly mobile and frequently move across state borders, compounding the challenge to control them. Moreover, many of the groups are conducting their operations in, or from, states that are either unwilling or unable to prevent them from attacking civilians and/or government structures.Footnote 101 The porous borders between Syria and its neighbouring countries, combined with the ongoing extreme level of violence, highlight the contemporary problems of armed groups.Footnote 102 Also, many conflicts see a multitude of armed groups fight each other and/or the government, in ever changing alliances.Footnote 103 Such (transnational) armed bands and groups pose a security problem that is difficult to counter with existing (often old-fashioned) security forces.Footnote 104 Moreover, they also pose difficult legal challenges, as they do not always neatly fit in the classic category of non-state actors for the purposes of IHL or international criminal law.
3.1. Prosecution as a War Crime
The war crimes within the jurisdiction of the ICC, set out in Article 8 of the ICC Statute, constitute a limitative list.Footnote 105 The drafters of the ICC Statute quickly agreed on the inclusion of the grave breaches of the universally ratified 1949 Geneva Conventions and acts listed in Common Article 3 of the same, but the content of the Additional Protocols, to which a significant number of states were not party, was subject to more discussion.Footnote 106 One of the drafters observed in this regard that ‘[u]ntil the very end of the Rome Conference, many delegations in fact also favored to include starvation as a war crime in non-international armed conflicts, but the “final package” did not include it in the list of war crimes in internal conflict situations’.Footnote 107 However, it is not clear why it was not included in the final draft. The drafting history, which will be discussed in more detail below, does not provide any insight in this regard. The omission is puzzling indeed because Additional Protocol II prohibits the starvation of the civilian population, a fact highlighted by two of the drafters including the chair of the Rome Conference working group on the definition of war crimes.Footnote 108 A parallel with the crime of causing excessive damage to the civilian population or natural environment, which was only included in Article 8(2)(b), cannot then be drawn.Footnote 109 Because this crime was based on the articles in Additional Protocol I that codified the principle of proportionality,Footnote 110 no equivalent for non-international armed conflict was adopted.Footnote 111 The various drafts that preceded the ICC Statute will therefore be scrutinised more closely in the following section.
3.1.1. Drafting History
In 1991, the International Law Commission (ILC) prepared a ‘Draft Code of Crimes against Peace and Security of Mankind’, which included an article that listed war crimes applicable to both international and non-international armed conflicts.Footnote 112 However, this article was intended to criminalise ‘exceptionally serious war crimes’ only, and the selection made by the ILC of the crimes that fulfilled that standard did not include starvation.Footnote 113 Building on the Draft Code, the ILC produced in 1994 a ‘Draft Statute for an International Criminal Court’, in which it gave the proposed court jurisdiction over ‘serious violations of the laws and customs applicable in armed conflict’,Footnote 114 as well as the grave breaches of the 1949 Geneva Conventions and Additional Protocol I.Footnote 115 Yet, it did not specify what the ‘serious violations’ entailed.
Following the ILC's proposal, the UN General Assembly first set up the Ad Hoc Committee on the Establishment of an International Criminal Court and, having been recommended to do so by the said committee, it subsequently created the Preparatory Committee on the Establishment of the International Criminal Court. From 1996 to 1998, this Preparatory Committee met several times to work on a draft statute. For the first session, the 1996 Preparatory Committee listed as a war crime for international armed conflicts the ‘starving of the civilian population and prevention of humanitarian assistance from reaching them’.Footnote 116 The draft also proposed certain war crimes for non-international armed conflicts, but these did not include the aforementioned crime. A year later, the draft had progressed and the proposal now included ‘starvation of civilians’ as a war crime for both international and non-international armed conflicts.Footnote 117 The said draft was very similar to the version proposed by the ICRC shortly before, which had included ‘starvation of civilians’ for both types of conflict.Footnote 118 However, the mere mention of ‘starvation of civilians’ was considered ‘too vague and open’.Footnote 119 Therefore, by the end of that same year, the provisions that were drafted for war crimes included for international armed conflicts a provision with the exact same wording as the current crime under Article 8(2)(b)(xxv).Footnote 120 This draft provided the option to also include this provision in the proposed section dealing with non-international armed conflicts.Footnote 121 The so-called ‘Zutphen Draft’ of the ICC Statute, as well as the draft agreed upon by the 1998 Preparatory Committee, retained the same approach: inclusion of the wording of the current crime for international armed conflicts and the option to include the same language as a war crime for non-international armed conflicts.Footnote 122
However, at the Rome Conference, the discussion focused mainly on the general question of whether war crimes for non-international armed conflicts should be included at all. Specific attention was also given to the definition and threshold of such conflicts, and the question whether employing certain weapons should be included as a crime for non-international armed conflicts received particular interest.Footnote 123 Yet, no specific debate took place as to the inclusion of starvation as a war crime for non-international armed conflicts.Footnote 124 As noted above, many delegations had actually supported the inclusion of starvation as a war crime for such conflicts;Footnote 125 but, for some reason, the final version of the ICC Statute, adopted on 17 July 1998, did not include this crime in Article 8(2)(e). As there appears not to have been any actual opposition to the inclusion of this crime for non-international armed conflicts,Footnote 126 the most reasonable explanation for the omission is an oversight, perhaps caused by the unfortunate placing of the proposed crime together with various versions of disproportionate use of forceFootnote 127 in ‘Option II’ of the draft text, which resulted in the drafters forgetting to include it as a war crime for non-international armed conflicts.Footnote 128
Importantly, the present ICC Statute does not include this crime in Article 8(2)(e). Article 22 of the ICC Statute prohibits the analogous application of crimes.Footnote 129 Consequently, the crimes listed in Article 8(2)(b), including starvation, cannot be applied to situations of non-international armed conflict;Footnote 130 nor can an Article 8(2)(b)(xxv) charge be re-characterised in the event that a trial chamber were to find that the nature of an armed conflict was non-international rather than international.Footnote 131 To address this conduct as a war crime would thus require bringing it under the heading of another war crime for non-international armed conflict. The following discussion considers whether conduct that may be prosecuted as starvation of the civilian population in times of international armed conflict could be brought within a different war crime when committed during a non-international armed conflict.
3.1.2. As Another War Crime?
When considering the obstruction of humanitarian relief and how it should be charged, the war crime of attacks on persons and material involved in a humanitarian assistance mission comes to mind. The persons taking part in humanitarian missions are, generally, civilians and are protected as such, but these attacks are specifically criminalised under the ICC Statute.Footnote 132 Be that as it may, preventing humanitarian personnel from carrying out their mission while leaving them unharmed, or preventing such materials from reaching the desired destination, does not fall within this particular war crime.
Another crime that comes to mind is that of collective punishments.Footnote 133 The underlying prohibitions are included in IHL applicable to international as well as non-international armed conflicts,Footnote 134 and are considered to be part of customary law.Footnote 135 However, this conduct is not included as a war crime in the ICC Statute, either for international or for non-international armed conflicts. It has been suggested that the denial of humanitarian assistance could be charged as other non-international armed conflict war crimes that are included in the ICC Statute, such as murder, torture and cruel treatment.Footnote 136 In the view of the present author, starvation of the civilian population by impeding humanitarian relief cannot be prosecuted as any of those war crimes. This follows from the division in IHL between rules that derive from the so-called Hague law, dealing with the conduct of hostilities, and those deriving from Geneva law, setting out a protection framework for protected persons. The war crimes of murder, torture and cruel treatment belong in the second category. In times of international armed conflicts, such crimes are committed against protected persons.Footnote 137 During non-international armed conflicts, the status of ‘protected person’ does not exist and the victims of the said crimes are persons protected by IHL applicable during this type of conflict. Although they cannot be called ‘protected persons’, the de facto situation of the victims would be the same: namely, they would be in the hands, or power, of the alleged perpetrator.Footnote 138 That being said, starvation of civilians is actually a violation of Hague law. Indeed, if a party to a conflict tries to starve a civilian population during a siege, for example, the victims are not in its hands, or power. It is difficult to see, then, how this conduct could be prosecuted as the war crime of murder, torture or cruel treatment.Footnote 139 For that reason, it also cannot fall within the war crime of committing outrages upon personal dignity.Footnote 140
Conversely, the crime of attacking the civilian population, in the words of the ICC's Pre-Trial Chamber I, ‘is applicable only to attacks (acts of violence) directed against individual civilians not taking direct part in the hostilities, or a civilian population, that has not yet fallen into the hands of the adverse or hostile party to the conflict to which the perpetrator belongs’.Footnote 141 This finding illustrates that violations of the rules related to the protection of the civilian population against conduct of hostilities – inter alia, included in Article 8(2)(e)(i) as the war crime of directing an attack against a civilian population during a non-international armed conflict – do not require the victim to be in the hands of the perpetrator. In addition, it illustrates the requirement that such an attack involves the use of violence.Footnote 142 Indeed, attacking objects indispensable for the survival of the civilian population, in the case of an international armed conflict, qualifies as starvation, provided that the perpetrator has the required special intent to cause starvation. Yet, at the same time, it also constitutes the war crime of attacking the civilian population.Footnote 143 In times of non-international armed conflict, attacking foodstuffs and drinking water systems, for example, with the intent to deprive civilians of food and water, would similarly fall under Article 8(2)(e)(i) of the ICC Statute.Footnote 144 However, this conduct requires attacks – that is, acts of violence – and thus does not cover starvation achieved through the denial of humanitarian assistance, for which the alleged perpetrator need not resort to violence. It is therefore evident that the prosecution of such behaviour as a war crime, when committed during a non-international armed conflict, is very challenging, if not impossible.
3.1.3. As a Crime Against Humanity or Genocide?
In addition to war crimes, the ICC also has jurisdiction over crimes against humanity and genocide.Footnote 145 Unlike the ICTY,Footnote 146 the existence of an armed conflict is not a jurisdictional requirement for crimes against humanity under the ICC Statute, although these crimes can, of course, still be committed during an international or non-international armed conflict.Footnote 147 If certain acts do not qualify as war crimes, the solution may therefore lie in prosecuting the conduct as crimes against humanity. In recent years, crimes against humanity appear, in fact, to be the ‘crime of choice’ for the ICC's Office of the Prosecutor.Footnote 148
In the past, the starvation of civilians has been recognised as a crime against humanity by the Nuremberg Tribunal, and has been mentioned as an example of persecution by the ICTY.Footnote 149 Eichmann was convicted for the crime against humanity of, inter alia, ‘starvation … of the civilian Jewish population’.Footnote 150 In those cases, however, the starvation concerned victims who were detained,Footnote 151 including in Nazi concentration camps. More recently, a UN Commission of Inquiry found that the North Korean government had committed crimes against humanity, inter alia, by the ‘inhumane act of knowingly causing prolonged starvation’.Footnote 152 Although the North Korean situation concerns an internal matter, it is, like starvation in concentration camps during the Second World War, quite different from the denial of humanitarian assistance during an armed conflict, discussed in this article.
Interestingly, in Rome, proposals were made to include the ‘new’ crime against humanity of mass starvation in the ICC Statute; however, they were not sufficiently supported,Footnote 153 most likely, because mass starvation was considered to fall within the crimes against humanity of murder, extermination or other inhumane acts.Footnote 154 Indeed, while the ad hoc tribunals considered extermination to consist only of mass killing and not to cover situations where certain ‘conditions of life’ were placed on a civilian population,Footnote 155 the drafters of the ICC Statute added for the crime against humanity of extermination the specific example that the crime ‘includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine’.Footnote 156 It has therefore been observed that ‘a siege of a village’ falls within the said crime against humanity, and that it covers the same acts as those criminalised in Article 8(2)(b)(xxv) of the ICC Statute.Footnote 157 Notwithstanding the correctness of this observation, the threshold for extermination is very high and requires the ‘mass killing of members of a civilian population’.Footnote 158 It is therefore more likely that deprivation of humanitarian aid would be prosecuted as a form of persecution,Footnote 159 or as part of a broader attack on a civilian population for the purposes of murder as a crime against humanity.Footnote 160 Moreover, starvation could be included as an ‘other inhumane act’ for the purposes of Article 7(1)(k) of the ICC Statute.Footnote 161
Nevertheless, securing a conviction for crimes against humanity is not an easy task. Whereas a single act can amount to a war crime and in principle no gravity threshold exists,Footnote 162 the ICC Statute defines crimes against humanity as acts committed as part of a ‘widespread or systematic attack’Footnote 163 directed against a civilian population.Footnote 164 The ‘attack’ is different from the acts of violence required for certain war crimes, but it does require the multiple commission of the prohibited acts.Footnote 165 Moreover, crimes against humanity, at least before the ICC, also require a certain level of organisation, as the attack against the civilian population must be ‘pursuant to or in furtherance of a state or organizational policy to commit such attack’.Footnote 166
The ICC's pre-trial judges have been divided in their views about the level of organisation necessary for a non-state actor to be able to commit crimes as part of an ‘organizational policy’. The late Judge Kaul, the minority in the Pre-Trial Chamber dealing with the Kenya situation, received strong support in the academic literatureFootnote 167 for his narrow view that for a non-state actor to commit crimes against humanity, it should have a state-like organisational level.Footnote 168 For its part, the majority view was less stringent, finding that in principle ‘the capability to perform acts which infringe on basic human values’ was sufficient.Footnote 169 Since then, the Pre-Trial Chambers, confirming the charges in the Ntaganda, Gbagbo and Blé Goudé cases, did not pronounce on the matter,Footnote 170 but in the Katanga Trial Judgment the aforementioned majority approach was adopted.Footnote 171 The currently prevailing view may not require a state-like organisation, but it still requires a substantial form of organisation.Footnote 172 However, many of the armed groups that recently fought in Syria and the Democratic Republic of Congo, for example, would not fulfil – at least not at every stage of the conflict – the organisational requirement, and members of these groups could thus not be prosecuted for crimes against humanity when they intend to cause starvation by restricting humanitarian access.Footnote 173
Turning next to prosecuting the conduct as genocide, naturally the starvation of a specific ‘national, ethnical, racial or religious group’, with the intent to destroy this group in whole or in part, qualifies as genocide;Footnote 174 this is also the case in times of non-international armed conflict.Footnote 175 Indeed, the ‘deliberate deprivation of resources indispensable for survival of members of one of the protected groups, such as food’Footnote 176 by a party to such an armed conflict constitutes genocide by ‘[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’.Footnote 177 However, the crime of genocide, as the ‘crime of crimes’, has a very high threshold and is hard to prove.Footnote 178 In addition to the requirement of a genocidal intent, the relevant conduct has to take place ‘in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.Footnote 179 As to the scale of the destruction, the ad hoc tribunals have opined that ‘[i]f a group is targeted in part, the portion targeted must be a substantial part of the group because it must be significant enough to have an impact on the group as a whole’.Footnote 180 The challenge to prosecute certain conduct as genocide is further illustrated by the discussion, mainly before the ICTR, on what constitutes a protected group,Footnote 181 and the fact that one of the foremost scholars on genocide has argued that the ICTY incorrectly qualified the killing of several thousands of Bosnian-Muslim men in Srebrenica as genocide.Footnote 182
Notwithstanding this criticism, the discussion hitherto shows that the denial of humanitarian access with the intention of starving the civilian population during non-international armed conflicts, in certain circumstances, indeed could be prosecuted as a crime against humanity or as genocide. However, although legally possible, the additional elements that have to be proved compared with the elements of war crimes, and the difficulty in proving these elements, would place considerable limitations on the ability to address this conduct as crimes against humanity or genocide before the ICC.
4. Concluding Remarks: The Need to Create a New Crime for Non-International Armed Conflicts
During contemporary armed conflicts, civilian populations in need are often denied access to humanitarian relief. Whereas such conduct, when committed with the intent to starve the said population, is included in the ICC Statute as a war crime for situations of international armed conflicts, the Court does not have jurisdiction over a similar war crime for non-international armed conflicts. It has been shown above that denying access, when not accompanied by acts of violence against civilians or civilian structures, cannot easily be brought under the heading of other war crimes applicable to non-international armed conflicts. It has further been shown that prosecuting the relevant conduct as crimes against humanity or genocide is subject to limitations and requires proving more elements than are required for war crimes.
Caution is warranted when attempting to bring conduct originally meant to fall within a certain crime under the umbrella of another crime: stretching war crime provisions to address unwanted behaviour in times of armed conflict can have negative consequences for the corresponding prohibition and/or protection under IHL.Footnote 183 It should therefore be avoided as much as possible. Moreover, fair labelling requires charging a prohibited form of conduct in a manner that best matches the alleged criminal behaviour.Footnote 184
In light of the foregoing, the present author therefore considers it advisable that the ICC Statute, as well as the Elements of Crimes, be modified so as to make future prosecution of starvation, through denial of humanitarian access, possible as a war crime under Article 8(2)(e) of the ICC Statute. Such an amendment to the ICC Statute may be proposed by any ICC State Party and can be dealt with by the Assembly of State Parties during its yearly meeting or at a Review Conference.Footnote 185 It should be noted that an amendment needs to be adopted by consensus or, if no consensus can be reached, by a two-thirds majority vote.Footnote 186 However, in Rome, the debates concerning the inclusion of war crimes arose mainly in respect of proposed crimes that were not explicitly prohibited in one of the main IHL treaties, or that were of debatable customary status. Because the prohibition of starvation is included in Additional Protocol II, and the customary status of the prohibition of starvation appears not to be contested,Footnote 187 the adoption of an amendment to criminalise starvation of the civilian population in times of non-international armed conflict may actually be relatively easy. The 2010 amendment to Article 8(2)(e) for poisonous weapons, gas and expanding bullets,Footnote 188 which was adopted by consensus without much controversy,Footnote 189 could serve as an example.Footnote 190
At the same time it would be helpful to make some minor modifications to the language of the international armed conflict war crime of starvation – included in the ICC Statute as Article 8(2)(b)(xxv) – to address the problems discussed aboveFootnote 191 that result from the wording of this provision. The proposed new war crime, applicable to both international and non-international armed conflicts, would ideally remove the reference to ‘method of warfare’, as this could unnecessarily raise problems. Similarly, to avoid misunderstanding, instead of referring to the Geneva Conventions, the crime should refer to the whole body of IHL. Tracking the language used in the German international crimes legislation may assist in reaching agreement on the wording.Footnote 192 Alternatively, reference to IHL could be avoided altogether and the provision would then address the lawfulness of withholding consent. The proposed amended Article 8(2)(b)(xxv), and new addition to Article 8(2)(e), would thus read as follows:
Intentionally using starvation of civilians [as a method of warfare] by depriving them of objects indispensable to their survival, including wilfully impeding relief [in a manner contrary to international humanitarian law/without lawful reasons to withhold consent].
It is hoped that the ICC states parties are willing to adopt a war crime of starvation of the civilian population in non-international armed conflicts, so as to enable the Court – if called upon as a result of inability or unwillingness on the part of the relevant state – to address the intentional denial of humanitarian assistance that occurs all too often during contemporary armed conflicts.
