“Let me be clear: The use of starvation as a weapon of war is a war crime.”

These are the words of UN Secretary General Ban Ki-Moon, uttered in connection with the starvation of civilians in rebel-held Madaya, a suburb of Damascus encircled by forces, including Hezbollah, loyal to the Assad government. His condemnation of the situation in many parts of Syria was echoed this week by US Secretary of State John Kerry who, in connection with the start of the Syrian negotiations (now suspended), bluntly stated:

[P]eople are dying; children are suffering not as a result of an accident of war, but as the consequence of an intentional tactic – surrender or starve. And that tactic is directly contrary to the law of war.

Below, I discuss the international law underlying these charges and the challenges of prosecuting siege warfare and the deliberate use of starvation as a weapon of war. These offenses exemplify the central legal dilemma discussed in my prior post mapping the law that applies to war crimes in Syria: what to do when there is a well-established legal prohibition amounting to an international crime without a ready forum empowered to prosecute it?

Starvation in Syria

The city of Madaya — which has been described as “an open-air prison” — has been under siege for months, its inhabitants reduced to eating grass. The Syrian government has arbitrarily barred the delivery of humanitarian aid, including by the International Committee of the Red Cross. There are also allegations based upon a leaked internal memo that the UN could have acted sooner and more forcefully to bring humanitarian aid into the city, but was wary of alienating the Assad regime and derailing the planned negotiations. These barriers to the provision of food and other forms of aid exist notwithstanding that the Security Council issued several forceful resolutions in 2014–15:

  • calling on all parties to lift all sieges on populated areas (UNSCR 2139),
  • condemning the Syrian government’s arbitrary withholding of consent to humanitarian actors,
  • authorizing the delivery of aid without express permission through certain identified border crossings,
  • calling upon all parties to implement ceasefires and humanitarian pauses to enable the provision of humanitarian assistance (UNSCR 2165), and
  • decrying the “use of starvation of civilians as a method of combat” (UNSCR 2258).

To be fair, there are government-controlled towns, notably Fuaa and Kefraya in Idlib province, that are also besieged by the opposition. The divided city of Aleppo may be next.  Indeed, between 400,000 (the UN’s figure) and 600,000 people (the Syrian American Medical Society’s estimate) are “under siege” or in “hard-to-reach” areas in Syria. The latter term is a euphemism that some argue is employed to avoid using the “S” word (“siege”), given its potential war crimes implications. A complicated agreement reached earlier this year is supposed to allow coordinated aid into both rebel- and state-controlled regions in need, but barriers remain.

Starvation of Civilians as a Method of Warfare

The deliberate starvation of civilians is not a new tactic of war, and parallels to the situations in Leningrad and Biafra come immediately to mind. Current international humanitarian law (IHL) — the law of armed conflict — makes clear that the deliberate starvation of the civilian population as a tactic of war is prohibited and a prosecutable war crime. This prohibition finds expression in Additional Protocol I (API) to the 1949 Geneva Conventions, which states that besieging forces may not starve civilians “as a method of warfare.” Similarly, it is prohibited to “attack, destroy, remove or render useless” any items necessary for civilians’ survival (e.g., food, land used to cultivate food, water, irrigation works, etc.), regardless of whether the objective is to starve the civilian population, to cause them to move, or some other motive.

This latter prohibition does not apply to resources used exclusively to sustain an adversary’s armed forces or in direct support of military action. Such resources may be directly targeted because they constitute “military objectives.” Moreover, in instances of “imperative military necessity” to counter an invader, a state party may derogate from the above prohibition and resort to “scorched earth” tactics.

These rules govern international armed conflicts (i.e., those between states, or IACs). A similar set of prohibitions appears in Article 14 of Additional Protocol II to the 1949 Geneva Conventions, which governs some non-international armed conflicts (i.e., NIACs, or conflicts between states and non-state actors or between non-state actors). Additionally, the ICRC considers the prohibition on deliberately starving civilians to be part of customary international law, regardless of conflict classification. Nonetheless, deliberately starving civilians as a method of warfare may be prosecuted before the International Criminal Court (ICC) only when committed in an IAC. Once more, we see that even when conduct is is clearly recognized as a war crime, it is not always easy to find a court in which it can be prosecuted.

The fact that the deliberate starvation of the civilian population as method of war is now universally condemned, and even criminal, marks an important evolution in the law. The Lieber Code, which governed the Union forces during the US Civil War, stated:

War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjugation of the enemy. … When a commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measures, to drive them back, so as to hasten on the surrender.

As recently as World War II, it was still understood that a belligerent could lay siege to a place and drive fleeing civilians back to areas controlled by the enemy in order to put pressure on available food and other resources. Indeed, in the so-called High Command Case, a US post-war military commission acquitted Field Marshall Wilhelm von Leeb for his role in the brutal siege of Leningrad (September 1941–January 27, 1944) on this rationale. The opinion states:

A belligerent commander may lawfully lay siege to a place controlled by the enemy and endeavor by a process of isolation to cause its surrender. The propriety of attempting to reduce it by starvation is not questioned. Hence the cutting off every source of sustenance from without is deemed legitimate.

The judges concluded, “We might wish the law were otherwise, but we must administer it as we find it.”

US articulations of the law also mirror this evolution. While the 1956 Law of War Army Field Manual noted that there was no rule of law that compelled commanders to permit civilians to leave a besieged locality and that it was within their discretion to drive inhabitants back in order to hasten the surrender of the adversary. The new Department of Defense Law of War Manual, which we have discussed extensively here, on the other hand affirms that the starvation of civilians as a method of conflict is prohibited, regardless of conflict classification.

Although this prohibition is now well established, there have been very few prosecutions for this crime. A notable exception is an in absentia national prosecution in Croatia against Momčilo Perišić (a colonel in the Yugoslav National Army who was also prosecuted by the International Criminal Tribunal for the former Yugoslavia (ICTY) for other crimes) and 18 others. The court convicted a number of defendants for crimes committed in the siege of the city of Zadar under the Croatian Penal Code, which lists starvation of civilians as a punishable war crime.

Barring Humanitarian Access

In addition to prohibiting starvation as a weapon of war, modern IHL requires parties to allow humanitarian access to civilians in need. Geneva Convention IV, aimed at the protection of non-combatants in IACs, provides that states must allow the free passage of medical consignments, food, and other relief supplies for the benefit of the civilian population. A similar rule is found in Additional Protocol II (APII), governing some NIACs. The breach of this rule, however, does not constitute a “grave breach” giving rise to individual criminal responsibility. Moreover, in an IAC, this obligation may be suspended if the supplies are being diverted for use by the opposing military force. As the rapporteur of a Canadian War Crimes Investigation Team examining the siege of Sarajevo noted: “One is left with the unpalatable fact that, unless there is a neutral arbiter, the only way to starve out a besieged military force, a legitimate act of war, is over the starved bodies of the civilian population.”

The ICC Statute goes farther than the Fourth Geneva Convention. It allows for the prosecution of the intentional starvation of civilians as a method of warfare as such, but also for “depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions.” But, again, this crime may be prosecuted only in IACs.  (See here for a cogent argument for why the ICC should be amended to allow for the prosecution of both crimes in NIACs).

The Legality of Siege Warfare

Siege warfare is a tactic developed during the Middle Ages that involves surrounding a garrison or a populated area with the goal of driving out the enemy forces by deteriorating their defenses and cutting them off from reinforcements and vital supplies. Although sieges are costly and time-consuming, they may under certain circumstances be easier than engaging the enemy directly in open battle or going house to house to rout out the adversary.

The legality of siege warfare received considerable attention following the siege of Sarajevo (April 1992–February 1996) during the war occasioned by the dissolution of the former Yugoslavia. Maj. Gen. Stanislav Galić, who commanded the Bosnian Serb unit that encircled the city, was indicted for his role in a shelling and sniping campaign in the city, the capital of Bosnia-Herzegovina. The ICTY convicted Galić of, among other offenses, “inflicting terror” on the civilian population in violation of Article 51 of API and Article 13 of APII, both incorporated into the ICTY Statute, which allows for the prosecution of “violations of the laws and customs of war.” He was sentenced to 20 years’ imprisonment, a sentence that was actually increased on appeal.

Notwithstanding this precedent, siege warfare is not necessarily unlawful. That said, the evolution in how armed conflicts are now fought — in urban areas rather than in battlegrounds remote from the civilian population — coupled with developments in IHL make “it very difficult for a commander to conduct a siege that is both successful and lawful.” Siege warfare remains lawful under contemporary law so long as it is directed only at combatants and those directly participating in hostilities, and only in so far as other provisions of the law of war are adhered to — a major challenge when both combatants and civilians are dependent on the same necessities.

Prospects for Prosecution

As discussed in my earlier post, most of the relevant IHL treaties discussed above are not applicable to the conflict in Syria because it remains — at least for now — a NIAC, and Syria has not ratified treaties devoted to such conflicts. As such, any war crimes prosecution would depend on customary international law prohibitions applicable to NIACs. Even if an ICC referral is forthcoming, that Court would not be able to entertain war crimes charges of deliberately starving the civilian population. Rather, the prosecutor would be limited to charging intentional attacks on civilians, civilian objects, and other protected persons and things — all serious charges, to be sure, but they don’t capture the particular horror of Madaya.

It should be noted that war crimes are not the crimes in play given the conditions of life in Syria. the prohibition against crimes against humanity — a constellation of acts made criminal by international law when they are committed as part of a widespread or systematic attack against a civilian population — is also applicable. As formulated in the ICC Statute, the crime against humanity of “extermination” covers not only the direct and intentional mass killing of civilians, but also intentionally inflicting conditions of life “calculated to bring about the destruction of part of a population,” including “the deprivation of access to food and medicine” that results in death. This captures the situation in Madaya and elsewhere in Syria.

Crimes against humanity can be charged regardless of whether there is an armed conflict, however classified. Any court with jurisdiction over crimes against humanity could thus prosecute individuals responsible for the abject conditions in Syria.