Sieges, starvation of civilians as a method of warfare, and other practices that may deprive civilians of objects indispensable to their survival
A second set of rules of IHL that have been brought dramatically to the fore in recent conflicts are those aimed at ensuring civilians’ access to objects indispensable to their survival. Situations that have raised questions about rules of IHL on humanitarian relief operations and their interplay with other parts of public international law include the severe limitations imposed by the government of Bashar al-Assad during the civil war in Syria, essentially amounting to a refusal to allow relief operations for civilians under the control of organized armed groups; the sieges imposed by all parties to the conflict in Syria; the maritime interdiction operations off the coast of Yemen; and the naval blockade of Gaza. These rules had until recently received limited attention. But in many – if not most – armed conflicts, far more deaths occur as a result of humanitarian crises created by the conflict than from the hostilities themselves.22
Latterly, a number of steps have been taken to advance the normative framework relevant to food insecurity in armed conflict. In April 2018 Switzerland proposed an amendment to the Statute of the International Criminal Court (ICC) to include the starvation of civilians as a war crime in non-international armed conflicts.23 The amendment was adopted by consensus in December 2019.24 And in May 2018 the UN Security Council adopted a landmark resolution on conflict-induced food insecurity.25
Expert discussions have also considered the rules of IHL relevant to preventing or minimizing conflict-related food insecurity – either in general terms or in specific situations such as sieges. The key elements of the rules regulating humanitarian relief operations were analysed in detail in the 2016 Oxford Guidance on the Law Relating to Humanitarian Relief Operations.26 Among other things, the Guidance considers which party’s consent is required as a matter of law in non-international armed conflicts; and develops a framework for analysis of what constitutes arbitrary withholding of consent to offers to conduct relief operations, as well as the consequences of unlawful withholding of consent.
In May 2018 the UN Security Council adopted a landmark resolution on conflict-induced food insecurity
Starvation of civilians as a method of warfare
The precise scope of the prohibition of starvation of civilians as a method of warfare has received considerable attention, including at the end of 2019 in the lead-up to the consideration by the Assembly of States Parties to the ICC Statute of the Swiss-proposed amendment.27 There is general agreement that the term ‘starvation’ should be given a wide interpretation that goes beyond just deprivation of food and water, to include deprivation of other goods essential to survival in a particular context, such as heating oil or blankets.28 Less clear is whether the prohibition only relates to situations where the belligerent resorting to this method of warfare has the purpose of starving the civilian population; or whether it also covers situations where, although not the purpose of a particular course of action, the starvation of the civilian population is its foreseeable consequence.
Article 54 AP I suggests a narrow interpretation that only prohibits conduct whose purpose is to starve civilians. Paragraph (1) only prohibits starvation ‘as a method of warfare’, suggesting that what is prohibited are not the results but rather the use of a particular way of fighting. The travaux to what became Article 54 AP I, as well as commentaries to the APs, would indicate that only ‘deliberate starvation’ of civilians is prohibited.29 Relevant state practice essentially takes the form of military manuals, the majority of which repeat the wording of Articles 54 AP I and 14 AP II. Those that do enter into a substantive discussion support a narrower interpretation.30
This said, the prohibitions in paragraphs (2) and (3) of Article 54 AP I on attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population suggest that there may be situations where measures that may foreseeably lead to starvation are prohibited, even where they are not taken with the purpose of starving the civilian population. Where the action is taken against such objects because they are used in direct support of military action, what is prohibited is conduct that may be expected to cause starvation or forced movement of civilians.31 However, in cases in which starvation or food insecurity arises not as a result of attacks on objects indispensable for the survival of the civilian population, but because of other acts, such as denial of humanitarian access, it is the general prohibition of starvation of civilians as a method of warfare in Article 54(1) that is relevant, and the conduct in question must have the purpose of causing the starvation of the civilian population.
Sieges
The application of the rules regulating humanitarian relief operations to sieges has also been the subject of discussion.32 IHL treaties refer to ‘besieged’ or ‘encircled’ areas, but do not define them. Nor are sieges defined in other areas of public international law. Unlike occupation, or naval blockades, there are no specific conditions that must be met for a siege to be established, and for specific rules to become applicable. The essence of siege operations is the isolation of besieged enemy forces in terms of their separation from reinforcements and logistical supplies. Sieges typically combine two constituent elements: the encirclement of an area, and bombardment – the frequency and intensity of which will vary.
Concerns about the compatibility of sieges with modern rules of IHL arise because attacks into besieged areas and the isolation of the besieged forces will also adversely impact any civilians in the besieged areas. Sieges are not prohibited as such under IHL. The besieging party is entitled to attack forces and other military objectives in besieged areas, and to limit supplies that reach them. However, in doing so it must comply with all relevant rules of IHL. Three sets of rules are particularly pertinent. The first comprises the rules regulating the conduct of hostilities; these are primarily of relevance to the bombardment dimension of sieges. The second set is the prohibition of starvation of civilians as a method of warfare, as well as the rules regulating humanitarian relief operations; these are of relevance to the encirclement dimension. The third comprises the rules on evacuations, which can provide a way of alleviating the adverse effects of sieges on civilians. The besieged party must also comply with a number of rules that play an important role in protecting civilians in besieged areas, and in reducing the adverse impact of sieges on civilians.
As regards the encirclement dimension of sieges, there is a question concerning the application to sieges of the prohibition of starvation of civilians as a method of warfare. The debate above as to whether the starvation of civilians must be the purpose of the siege is pertinent. Additional arguments that are specific to sieges have been advanced.33 Some consider that all methods of warfare must, as highlighted by the ICJ in the Nuclear Weapons Advisory Opinion, comply with the principle of distinction. While starvation of fighters as a method of warfare is permissible, it must not be applied in a manner that is indiscriminate. If belligerents resort to the starvation of fighters, for example by means of a siege, they must not do so in a manner that is indiscriminate and thus also causes the starvation of civilians.
Others consider that while the prohibition covers only the deliberate starvation of civilians, measures that may have the ‘incidental’ effect of causing the starvation of civilians – including operations to starve fighters, such as sieges – must not be disproportionate: i.e. the anticipated military advantage of such measures must not be excessive in relation to the civilian deaths or injuries (including from starvation) that they may be expected to cause. This approach has to rely on the claim that the mere encirclement of an area constitutes an ‘attack’, bringing the rule of proportionality into play; or on the existence of a broader principle of proportionality applicable to all rules of IHL.34
Whatever position is adopted with regard to the scope of the prohibition of starvation, the general rules regulating humanitarian relief operations will become applicable whenever civilians are inadequately provided with goods essential to their survival. If respected, these rules will prevent starvation from occurring.
22 Wenger, A. and Mason, S. J. A. (2008), ‘The civilianisation of armed conflict: trends and implications’, International Review of the Red Cross, 90(872), p. 842, doi:10.1017/s1816383109000277.
23 ICC Assembly of States Parties, Report of the Working Group on Amendments, ICC-ASP/17/35, 29 November 2018, §§ 9–11; UN Doc C.N.399.2019.TREATIES-XVIII.10, Switzerland: Proposal of Amendment, 30 August 2019.
24 ICC Assembly of States Parties, Resolution on amendments to article 8 of the Rome Statute of the International Criminal Court, 6 December 2019, ICC-ASP/18/Res.5.
25 UN Security Council Resolution 2417 (2018).
26 Akande, D. and Gillard, E. (2016), Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict, University of Oxford and United Nations Office for the Coordination of Humanitarian Affairs, https://www.unocha.org/sites/dms/Documents/Oxford%20Guidance%20pdf.pdf.
27 See for example Coco, A., de Hemptinne, J. and Lander, B. (eds) (2019), Special Issue on Starvation in International Law, Journal of International Criminal Justice, 17(4).
28 See for example Akande, D. and Gillard, E.-C. (2019), ‘Conflict-induced Food Insecurity and the War Crime of Starvation of Civilians as a Method of Warfare: The Underlying Rules of International Humanitarian Law’, Journal of International Criminal Justice, 17(4), pp. 753–779, doi: 10.1093/jicj/mqz050.
29 See for example the ICRC Commentary: ‘The term “starvation” is generally understood by everyone. To use it as a method of warfare would be to provoke it deliberately [emphasis added], causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies.’ ICRC Commentary on the APs, para 2089, and para 4791 in relation to non-international armed conflicts.
30 Australia’s Commanders’ Guide notes that AP I prohibits starvation of civilians as a method of warfare and explains that ‘Military operations involving collateral deprivation are not unlawful as long as the object is not to starve the civilian population.’ Commanders’ Guide (1994), para 907. The UK Military Manual states that: ‘The law is not violated if military operations are not intended to cause starvation but have that incidental effect, for example, by cutting off enemy supply lines which are also used for the transportation of food, or 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.’ UK Ministry of Defence (2004), The Joint Service Manual of the Law of Armed Conflict, Section 5.27.1. The US Law of War Manual specifies that: ‘Starvation specifically directed against the enemy civilian population … is prohibited.’ US Department of Defense (2016), US Department of Defense Law of War Manual, para 5.20.1.
31 Article 54(3)(b) AP I.
32 See for example Gillard, E.-C. (2019), Sieges, the Law and Protecting Civilians, Briefing, London: Royal Institute of International Affairs, https://www.chathamhouse.org/sites/default/files/publications/research/2019-06-27-Sieges-Protecting-Civilians_0.pdf; and Gaggioli, G. (2020, forthcoming), ‘Besieging Cities and Humanitarian Access’, ICRC and College of Europe, Proceedings of the 20th Bruges Colloquium, Legal Challenges for Protecting and Assisting in Current Armed Conflicts.
33 Ibid.
34 See for example Gaggioli (2020, forthcoming), ‘Besieging Cities and Humanitarian Access’.