Download report

A new report from the International Bar Association (IBA) War Crimes Committee voices support for the 2018 Swiss proposal to amend the Rome Statute to include the war crime of starvation in non-international armed conflicts (NIACs). Currently, the prohibition of starvation as a war crime in the Rome Statute of the International Criminal Court (ICC) only applies in relation to international armed conflicts. The Report on the Swiss proposal to amend the Rome Statute to include the war crime of starvation in non-international armed conflicts reviews the underlying support in international humanitarian law for the proposed amendment and examines the varied elements of the crime of intentionally starving civilians, with a particular focus on the framework applicable to NIACs.

The report urges the Assembly of States Parties of the ICC to approve the proposed amendment during its 18th Session at The Hague this week (2–7 December 2019).

Download report

Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee, commented: ‘Deliberate starvation of civilians during armed conflict is an abhorrent practice for which the perpetrators must be held accountable. Despite being widely recognised as a violation of humanitarian law, the absence of specific wording in the Rome Statute regarding intentional starvation as a war crime in non-international armed conflict is a glaring oversight that must be addressed. This is a glaring gap. The detailed amendments proposed by the Government of Switzerland will bring Article 8 of the Rome Statute in line with current international humanitarian law, making it easier to tackle this crime directly.’

Article 8(2)(b)(xxv) of the Rome Statute defines the war crime of starvation as ‘intentionally 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’. Starvation as a war crime in the Rome Statute is only included in the provisions applicable to international armed conflicts, and is not currently applicable before the ICC in the context of situations that may amount to NIACs. In light of this, the Government of Switzerland tabled a proposal in 2018 for the amendment of Article 8 to extend the crime of starvation to situations of NIACs. Alongside an amended definition, the Swiss government proposed the following additions to Article 8(2)(e) of the Rome Statute regarding elements of the crime:

• the perpetrator deprived civilians of objects indispensable to their survival;
• the perpetrator intended to starve civilians as a method of warfare;
• the conduct took place in the context of, and was associated with, an armed conflict not of an international character; and
• the perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

The report supports the proposal, noting that intentionally starving civilians during NIAC is already explicitly prohibited in law. Article 14 of Additional Protocol II of the Geneva Conventions, an instrument that has been ratified by 168 states, directly prohibits the ‘starvation of civilians as a method of combat’ in NIACs. Other international mechanisms, including the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’), have also criminalised starvation as a method of warfare in NIACs. In 2018, the United Nations Security Council recognised in Resolution S/RES/2417 (2018) that starvation can constitute a violation of international humanitarian law regardless of whether it occurs within international armed conflict or NIAC.

In addition to voicing support for the Swiss proposal, the report provides an in-depth analysis of the physical and mental elements of the crime of intentional civilian starvation during armed conflict. A number of questions are highlighted, such as:

• whether a result element is required (ie, proof that civilians suffered or died as a result of starvation);
• whether a minimum duration is required;
• whether starvation can be perpetrated by omission (ie, a state’s failure to ensure adequate provision of sustenance to the population under its power);
• what items are considered indispensable;
• the scope of wilfully impeding relief supplies; and
• the meaning of the phrase ‘as a method of warfare’.

Typical paradigms in which civilians may starve, including scorched earth tactics and the mass forced movement of civilians, are also examined in the report.

Ms D’Alessandra, added: ‘Intentional civilian starvation during armed conflict is a scourge on modern society. Innocent people suffer, and often die, due to denied access to food, medical care and other essential supplies during times of war. This is true regardless of whether the conflict takes place in an international or non-international context. The proposed amendments to the Rome Statute, if implemented, would serve as a reminder to all jurisdictions that these crimes will not go unpunished.’

ENDS

Notes to the Editor

1. The Report on the Swiss proposal to amend the Rome Statute to include the war crime of starvation in non-international armed conflicts is available to view here: www.ibanet.org/Document/Default.aspx?DocumentUid=6eddc2fa-e7da-4682-a360-185fa1140ae7
2. The IBA War Crimes Committee is the only IBA committee of its kind focused specifically on atrocity crimes, and international criminal law and practice. Over the past 15 years there has been tremendous growth and development in this field of law. This committee provides a forum for the very diverse group of practitioners and scholars involved in this area of law.
   
   The committee endeavours to provide IBA members with comprehensive and reliable information and resources on international criminal law. It also provides lawyers, international agencies and tribunals with an unparalleled and easily accessible network of contacts and, in turn, is directly involved with the IBA’s ongoing programme in support of international, ad hoc and domestic war crimes tribunals.
   
   The committee works alongside the International Bar Association’s Human Rights Institute (IBAHRI) and the IBA Human Rights Law Committee to promote justice around the world and uphold the principle of accountability.
   
   Starting in 2017, the IBA War Crimes Committee has established a special connection to the the International Committee of the Red Cross (ICRC), which has appointed an International Humanitarian Law Expert/Observer to the Committee.
3. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

For further information please contact: