Criminalizing Starvation in an Age of Mass Deprivation in War: Intent, Method, Form, and Consequence.

• Author: Dannenbaum, Tom

TABLE OF CONTENTS I. INTRODUCTION II. A BRIEF LEGAL HISTORY OF STARVATION AND ARMED CONFLICT III. CRIMINALIZATION: CODIFICATION AND TH E COMPLICATED BUT ESSENTIAL QUESTION OF CUSTOM A. Criminalization by Treaty and its Limits B. Customary Criminalization in the Absence of Prosecution IV. INTENTIONAL DEPRIVATION A. Intent as Purpose? B. "Intent" in the ICC Statute (and Beyond): Direct and Oblique C. Contextualizing Intent in the Starvation Crime V. STARVATION AS A METHOD OF WARFARE: PROCESS, OUTCOME, AND FORMS OF DEPRIVATION A. The Notion of Method as Inherently Purposive B. The Categorical Protection of Objects Indispensable to Civilian Survival C. Indispensable Objects and Starvation as a Method of Warfare D. A Transitive Interpretation of "Starvation of Civilians as a Method of Warfare" E. "Purpose" in the Second Protocol F. The Transitive Interpretation and the Rome Statute VI. THE CIVILIAN POPULATION, ENCIRCLEMENT DEPRIVATION, AND THE GENEVA CONVENTIONS A. The Civilian Population, Discrimination, and the Issue of Egress B. Humanitarian Access and Starvation C. Relief Supplies and the Geneva Conventions VII. CONCLUSION I. INTRODUCTION

In January 2016, a resident of Madaya, Syria gave a harrowing account of life under siege: "[Y]ou see walking skeletons. The children are always crying. We have many people with chronic diseases." (1) Another dispatch described inhabitants eating grass and neighbors "fail[ing] to recognize neighbors in the streets because their faces [were] so sunken." (2) Madaya was emblematic of the deprivation affecting hundreds of thousands of Syrians at the time. (3) The situation there was not unique. In 2017, United Nations (UN) Under-Secretary-General for Humanitarian Affairs Stephen O'Brien told the UN Security Council, "we are facing the largest humanitarian crisis since the creation of the United Nations... more than 20 million people across four countries face starvation and famine." (4) Four years later, Peter Maurer. President of the International Committee of the Red Cross (ICRC), warned that the enduring problem of inadequate civilian access to objects indispensable to their survival risked "humanitarian disaster on a vast scale." (5) With the global situation deteriorating, UN Secretary-General Antonio Guterres reported recently that the number of people facing crisis or worse levels of acute food insecurity related to armed conflict rose from 99 million to 140 million from 2020 to 2021. (6)

These crises cannot be attributed simply to intractable scarcity or to a failure of humanitarian will; they are, in significant part, the consequence of belligerent parties' decisions about how to wage war. (7)

In 2020, almost half of the population of South Sudan was in "crisis" or worse due to food deprivation that could be attributed primarily to armed conflict. (8) Isolated by a Saudi- and Emirati-led blockade on one side and subject to the confiscation of food and medicine by the Houthis on the other, the people of Yemen have endured years of what remains one of the gravest humanitarian crises in the world. (9) In Myanmar, the military's counterinsurgency and ethnic cleansing strategy has included the destruction, pillage, and denial of food and other essentials. (10) The 2021 Report of the Independent International Commission of Inquiry on Syria described "modern day sieges in which perpetrators deliberately starved the population along medieval scripts," imposing "indefensible and shameful restrictions on humanitarian aid." (11) Since November 2020, evidence has accumulated that Ethiopian and Eritrean belligerents have used starvation tactics to devastating effect in Tigray. (12) Russian forces appear to have resorted to similar methods in Ukraine. (13)

The deprivation takes many forms. Warring parties have attacked humanitarian workers and farmers; (14) destroyed or rendered unusable livestock, crops, farmland, fishing systems, water and irrigation infrastructure, health systems, and food markets; (15) looted farms, markets, businesses, households, and humanitarian aid; (16) impeded pastoralists' free movement and farmers' access to their land; (17) disrupted coping strategies; (18) and sequestered populations from humanitarian aid, while attacking civilians seeking to access essential goods. (19) Often, many of these measures have been adopted simultaneously. (20)

Starvation has long been weaponized in war. (21) However, the current resurgence has motivated calls for accountability in a context in which there are now the legal tools necessary to pursue that objective. (22) In the last century, international law has transitioned from permitting the starvation of the civilian population in war to weakly regulating it, subsequently prohibiting it, and ultimately classifying it as a war crime, most prominently through codification in the International Criminal Court (ICC) Statute in 1998. (23) For two decades, the court's jurisdiction over the crime was restricted to international armed conflicts (IACs). (24) However, a parallel provision for non-international armed conflicts (NIACs) was incorporated by amendment in 20 1 9. (25) A strong case can now be made that the crime has customary status in both forms of conflict. (26)

And yet, the prohibition remains something of an enigma. Constrained by jurisdictional factors, the ICC prosecutor has yet to open an investigation implicating the starvation war crime. (27) Domestic provisions incorporating the crime have also remained almost entirely fallow. (28) In this jurisprudential vacuum, fundamental interpretive questions have yet to be resolved. What precisely is meant by "[i]ntentionally using starvation of civilians as a method of warfare," as the ICC codification frames the crime? (29) Does criminal liability attach only to those who seek to weaponize a particular form of civilian suffering? Or does it attach also to those who act in the knowledge that such suffering will occur as a consequence of their conduct? Alternatively, should the legal focus be on the deprivation of "objects indispensable to civilian survival" given that concept's key role in the underlying international humanitarian law (IHL) framework and as the central element of the war crime? (30)

Sharpening what is at stake in these questions are two features of the practical reality of starvation in war. First, the situation and nature of objects indispensable to survival is often such that they can be expected to provide sustenance to both civilians and combatants. This is particularly obvious in a siege or blockade, where the encircling party may exercise tight control over what goes into the besieged area, while retaining very little influence over the distribution of consignments once permitted through. However, it is true also of agricultural land and resources in enemy territory. Second, conduct that deprives people of those objects often involves acting on the objects (destroying them, impeding their delivery, removing them, rendering them useless, or otherwise), rather than acting directly on the affected persons (as occurs when those persons are prevented from pursuing coping strategies). When these features combine-such that a belligerent acts directly on objects of sustenance value to both civilians and combatants (hereinafter "nonexclusive sustenance")-much turns on how the relevant legal authorities answer the interpretive questions identified above. (31)

At one end of the interpretive spectrum, the crime would attach only to acts that seek to weaponize the civilian suffering associated with starvation. That, the argument goes, is what it means to intentionally use starvation of civilians as a method of warfare. (32) In a context of nonexclusive sustenance, this would imply a crime of narrow scope. For example, a "surrender or starve" siege that deprives an encircled population of essentials on a grand scale might be thought to fall short of the criminal threshold if pursued for the specific purpose of starving out the combatants ensconced within. (33) Even operations that do seek to weaponize civilian suffering may be difficult to prosecute, given the challenge of proving purpose in such contexts. (34)

This Article offers a different interpretation. "Intentionally using starvation of civilians as a method of warfare" should be read to refer not to the weaponization of a particular form of civilian suffering, but to the deliberate deprivation of objects indispensable to civilian survival. (35) Reframing the crime in this way changes the analysis fundamentally. Neither the deliberateness of the deprivation nor the indispensability of the objects to civilians is contingent on the ultimate objective(s) of those engaged in that deprivation. As such, on the view advanced here, the crime attaches even if the perpetrators do not seek to weaponize civilian suffering and in fact endeavor to mitigate that harm. Thus construed, rather than being limited to a vanishingly narrow range of scenarios, the crime involves a broad and categorical ban that reflects the torturous nature of societal deprivation. (36)

The argument proceeds as follows. Part II provides a brief legal history of starvation in war and details the key features of the current IHL framework. Part III identifies the key steps to criminalization and explains why the crime ought to be understood as customarily applicable, despite the dearth of prosecutions thus far. Parts TV and V recount and rebut the case for a narrow crime. Part IV focuses on the dimension of mens rea, advocating an interpretation that is inclusive of oblique, and not just purposive, intent. Part V advances a transitive theory of starvation as a method of warfare and makes the case for a criminal prohibition inclusive of operations not targeted at civilians. In the alternative, Part V also considers the implications of applying a civilian targeting requirement to the transitive understanding of the crime, emphasizing...