On the 5th of October, the Commission on Human Rights in South Sudan, established in 2016 with a view to monitoring human rights and facilitating transitional justice in the country, issued a report entitled “There is nothing left for us”: starvation as a method of warfare in South Sudan. In it, the Commission investigates the devastating weaponization of starvation by both government and opposition parties to the conflict. The statistics are arresting: 7.5 million of the country’s nearly 11 million people require humanitarian assistance (summary, para. 1), with 5.29 million in “crisis” or worse (as compared to 1.5 million before the conflict) (para. 4). Over 290,000 children are in a state of severe acute malnutrition, with 1 million suffering from moderate acute malnutrition, and over 350,000 pregnant and lactating women in a state of acute malnutrition. (para. 4) Although environmental factors, such as flooding, have exacerbated the situation (e.g. paras. 6, 11), the conflict is at the crux of the disaster, with food insecurity in Western Bahr el Ghazal, Jonglei, and Central Equatoria States “almost entirely human-induced.” (para. 6).
In its analysis of this situation and the responsibility of the parties to the conflict for it, the Commission makes an important contribution to the developing jurisprudence on starvation in conflict. In this article, I situate the report within the context of recent legal and political developments at the international level, before focusing on three key aspects of the Commission’s analysis: International Criminal Court (ICC) jurisdiction and the extra-jurisdictional significance of the Statute, the issues of purpose and intent in the prohibition of starvation, and the role of international human rights law (IHRL)—and particularly economic, social, and cultural (ESC) rights—in evaluating starvation as a method of combat.
The report reflects an intensifying legal and political concentration on the issue of starvation in war. Against a backdrop of famine or near-famine conditions in multiple armed conflicts, the U.N. Security Council brought the issue to the top of its agenda in Resolution 2417 (2018). The following year, the Rome Statute of the ICC was amended to incorporate starvation as a war crime in non-international armed conflicts (NIACs) in article 8(2)(e)(xix). Days later, the U.N. General Assembly reaffirmed the prohibition of starvation as a method of warfare in its Resolution 74/149 on the right to food.
The ICC amendment, which received its first ratification (from New Zealand) two weeks ago, has already stimulated significant academic commentary, despite essentially replicating the Statute’s longstanding (and thus far unused) war crime for international armed conflicts (IACs) in article 8(2)(b)(xxv). Starvation and the denial of humanitarian access in armed conflict has also played a significant role in the analyses of multiple recent U.N. commissions and groups of experts including those tasked with evaluating the situations in Gaza, Myanmar (also here), Syria, and Yemen (also here), among others. Indeed, it had come up in one way or another in each of the prior reports of the Commission on Human Rights in South Sudan (2020 paras. 69-71 and Annex II paras 37-47, 2019 paras. 30, 35 (limited to starvation in detention), 2018 paras. 25, 33, 43, 80-83, 96, 132, 2017 paras. 82 (as a possible indicator of genocide), 86).
Amidst this escalating legal and political attention, the Commission’s October 5th paper is a landmark for its lengthy and granular examination of starvation as a method of war in a specific context. Containing 46 pages of analysis, grounded in 140 detailed individual witness statements, 234 documents (including confidential records), and satellite imagery, the paper was described in a press release as “the first report of its kind by a UN panel.” Particularly in light of the dearth of detailed jurisprudence on the prohibition of starvation as a method of warfare, it is likely to have ramifications far beyond the situation at hand.
Criminalization, Jurisdiction, and the ICC
South Sudan is not party to the Rome Statute and there is no indication that nationals of a State Party have been involved in the actions scrutinized in the report. Moreover, in the current context, it is both difficult to imagine a Security Council referral and questionable whether such a referral would be a good idea. Nonetheless, the Commission relies on the ICC Statute’s new article 8(2)(e)(xix) in framing the issue of criminality (paras. 19, 35, 89), while also referencing article 28D(e)(xvi) of the Malabo Protocol as a relevant, albeit currently dormant, parallel provision (para. 42). The focus on the ICC regime in a context in which it is almost certainly not applicable reflects the enduring normative centrality of the Rome Statute within international criminal law, even in a period of profound institutional difficulty for the Court itself. In the current system, substantive amendments to the Statute matter (also here) as moments of legal development that have meaning far beyond the courtrooms of The Hague.
Seizing on that normative shift, the Commission places great emphasis on criminal justice in the report, concluding in a range of situations that there is “sufficient evidence” to hold individuals criminally responsible for the crime of starvation as a method of warfare, as well as for other relevant crimes (paras. 92, 128-31, 144-147), including on the basis of the arbitrary denial of humanitarian aid (124, 131, 147). This position appears to be informed in part by inclusion of “willfully impeding relief supplies” in the ICC and Malabo Protocol definitions of the crime.
Complementing those substantive findings, the Commission considers multiple fora for prosecution, recommending the explicit inclusion of starvation as a method of warfare in the Draft Statute of the Hybrid Court for South Sudan (para. 148(e)), emphasizing the possibility of starvation prosecutions in foreign courts exercising universal jurisdiction (para. 89), and appearing to urge ratification of the Malabo Protocol as a step towards “address[ing] impunity” (para. 42). Expectations on the latter front ought to be tempered by the fact that the Protocol has yet to garner any of the fifteen required ratifications necessary to enter into force.
The Commission also notes the possibility of ICC jurisdiction via a Security Council referral (para. 89), albeit without comment as to the likelihood or utility of such an action. Curiously, other (admittedly improbable, but no less likely) paths to ICC jurisdiction are overlooked. For example, the Commission does not consider what it would mean for South Sudan to make a declaration under article 12(3) of the Statute on this issue (despite acknowledging that jurisdictional avenue in its simultaneously-released, general report on Transitional Justice and Accountability in the country, para 66). Such a declaration may be unlikely today, but one need only look north of the border to events in Khartoum to be reminded of how changing political winds can affect state engagement with the ICC.
The Commission also declined to consider in either report whether ICC jurisdiction could arise if it were determined that South Sudanese refugees in Uganda or any other State Party are suffering food insecurity in part because their return has been precluded by the destruction or removal of their food sources at home. In authorizing the Bangladesh/Myanmar investigation, Pre-Trial Chamber III held that ICC territorial jurisdiction (art 12(2)(a)) can attach even when alleged perpetrators act exclusively on the territory of a non-party, as long as at least part of the crime (such as a consequence thereof) occurs on State Party territory (paras. 50-51, 56-62). Of course, in the Bangladesh/Myanmar situation, the consequence arising in Bangladesh was a constitutive element of the crime in question (paras. 53, 62). In contrast, there is no element of starvation (annex II) specifying a certain level of suffering or harm among starvation victims (also Commission, para. 36), so all elements of the crime in the refugee situation described above would occur in South Sudan. However, the Bangladesh/Myanmar pre-trial chamber declined explicitly to foreclose the assertion of territorial jurisdiction on the basis of effects that do not amount to a constitutive element of the crime (paras. 55-56, 62). If the ICC were to affirm that broader understanding of article 12(2)(a), jurisdiction could attach to some of the starvation crimes in South Sudan.
In addition to bringing questions of criminal jurisdiction and accountability to the fore, it may also be that the codification of the war crime in the ICC Statute and the Malabo Protocol has helped to bring greater prominence to the underlying IHL provisions on starvation and humanitarian access. It is perhaps notable in this respect that the Commission’s work in 2017, 2018, and 2019 devotes far less attention to those IHL frameworks (with the exception of some oblique references in 2017 [para. 86] and 2018 [e.g. paras 33, 132]) than does the general report in 2020 and the subsequent starvation-specific report. If the criminalization of the practice is indeed a significant causal factor that explains the attention given to the underlying IHL rule, this would be unfortunate. The tendency to view IHL through the lens of war crimes can risk distorting the underlying regime, with non-criminal actions gaining a veneer of respectability, even if they clearly violate the underlying IHL rule. The rules on humanitarian access may be especially vulnerable to that risk.
The Scope and Content of the Prohibition
In the report at hand, however, the situations described are generally not legally marginal. Many of the belligerents’ actions detailed therein are targeted exclusively at civilians and are unambiguously illegal under the core IHL prohibition (e.g. paras. 100, 101, 109, 128-131, 146). The Commission is also clearly correct to acknowledge and incorporate conditions such as floods, the COVID-19 pandemic, reduced farming, displacement, and donor fatigue (e.g. paras. 12-15, 102, 103, 110, 117-122, 135) into its analysis, while stressing that such conditions underscore (rather than mitigate) the duty not to deprive the affected populations of access to humanitarian relief (e.g. paras. 101, 128-31, 103, 109; see also: January 2020 report paras. 70-71 and Annex II, paras. 40-41).
Nonetheless, there are legal points on which greater elaboration would have been useful. One of the most important areas of debate with respect to both the IHL prohibition of starvation and the derivative war crime involves the issues of purpose and intent. The IAC rule in Additional Protocol I (art. 54) is particularly difficult in this respect, due to the complex relationships among subparagraphs 1, 2 and 3 of the provision. The NIAC rule in article 14 of Additional Protocol II is simplified, but also raises some difficulties. The latter provision bans “starvation of civilians as a method of combat” and holds that it is “therefore” prohibited to engage in various forms of deprivation “for that purpose” of objects indispensable to civilian survival. The ICC Statute provisions for both IAC and NIAC criminalize “intentionally using starvation of civilians as a method of warfare,” including by “willfully impeding relief supplies.” (ICC Statute, arts. 8(2)(b)(xxv), 8(2)(e)(xix)).
Some have relied on terms such as “method,” “purpose,” and “intent” to argue that starvation sieges or blockades may be imposed without violating these IHL provisions, as long as they have the ultimate objective of starving out enemy forces, rather than targeting the civilian population. In an article forthcoming in International Law Studies (and briefly previously), I argue against that position. Such tactics entail the purposive starvation of the isolated population as a whole. Unless the area in question is primarily populated by combatants, that territorial population retains its civilian character (para. 4610, n. 15510) and is therefore protected from being made the object of attack or other belligerent operations (arts. 48, 51 Additional Protocol I). To deprive such a population of objects indispensable to human survival is to starve civilians as a method of warfare, even when done with a view to getting at the enemy forces within. In other words, when pursued via such means, the latter aim entails as a necessary predicate the purposive starvation of the (civilian) population as a whole. Such a policy is both illegal under IHL and criminal under the standard codified in article 8(2)(e)(xix) of the Rome Statute (8(2)(b)(xxv) for IACs).
The aforementioned lack of any element of the crime specifying a level of suffering or harm that must be inflicted on victims bolsters this interpretation. Properly understood, starvation as a legal concept just is the deprivation of items essential for the survival of the civilian population (see, e.g., here para 741). When performed deliberately for reasons related to the armed conflict, such deprivation violates the prohibition of starvation of civilians as a matter of warfare, even if the belligerent engages in such deprivation in the hope that the adversary capitulates before civilians suffer any specific harmful or lethal consequence.
There are additional reasons to push back against an overly narrow, purposive understanding of the prohibition. In the context of attacking, destroying, removing, or rendering useless those objects that are indispensable to civilian survival, it is clear (at least in IACs) that actions expected to cause the starvation of the civilian population are prohibited, whatever the purpose (art 54(3)(b), AP I) or motive (art 54(2), AP I). Supporting a similar reading of article 14 of Additional Protocol II, the ICRC Commentary notes that a military-necessity exception to the non-derogable starvation ban was eschewed in drafting and warns that the “prohibition would be meaningless if one could invoke the argument that members of the government’s armed forces or armed opposition might make use of the objects in question.” (paras. 4795, 4806-7).
The acts listed in articles 14 (Protocol II) and 54 (Protocol I)—attack, destruction, removal, and rendering useless—are (in the words of the ICRC Commentary) “the most usual ways” (para. 2098) in which the broader prohibition of starvation as a method of warfare may be applied. However, as the Commentary emphasizes, “the list is not exhaustive. Starvation can also result from an omission.” (para 4800) Considering blockades and sieges within that framework would mean that they too must be “directed exclusively against combatants.” (para. 4796; see also para. 4798). An interpretation that would instead permit a belligerent party to inflict via the denial of humanitarian access the kind of indiscriminate harm on a civilian population that would be prohibited unequivocally if done via the destruction, removal, or rendering useless of their foodstuffs, or simply through a direct kinetic attack (art 51(4), Protocol I) would be deeply dissonant.
At a high level of abstraction, the Commission is silent on these issues. It defines starvation as a method of warfare as the “deprivation of the indispensable objects with the intention of starving civilians as a method of warfare” (para. 7) and notes that the intention element is important to distinguishing it from “a failure to fulfil the right to food or freedom from hunger”—the broader, affirmative duty borne by the state in human rights law (para. 8). However, it does not elaborate on whether oblique intent counts here (as it does in article 30(2)(b) of the ICC Statute) or on how to understand intent (or purpose) in encirclement deprivation contexts.
Nonetheless, at several points, the Commission would appear to endorse the conclusion proposed above. At a bare minimum, the report is consistent with that conclusion. It finds that denying humanitarian access to civilians “living under opposition control” or in “rebel-controlled territory,” or otherwise depriving those populations of objects indispensable to their survival is a violation of the prohibition of starvation. (paras. 9, 11, 105). Nowhere does the Commission consider even briefly the possibility that these operations could be characterized as targeted against enemy forces with collateral civilian consequences. It appears (correctly in my view) to take it as obvious that the denial of humanitarian access in such contexts cannot be justified via such redescription.
In addition to the denial of humanitarian access, another key method of starvation detailed in the report is pillage. In several cases, those engaged in the pillage of essential resources kept them, apparently as a reward. The Commission deems such actions to qualify as the intentional (and criminal) starvation of civilians as a method of combat, even though they have the parallel purpose of providing sustenance or other value to the troops engaged in the pillage (paras. 88, 89, 92, 144-45). In other words, the fact that the troops in question “wanted to get their hands on” objects indispensable to civilian survival (para 79) does not preclude classifying such action as both pillage and the intentional infliction of starvation on those civilians.
The Commission does not state specifically whether those engaged in looting exclusively for looting’s sake would also violate the starvation provision when the looted objects were deemed essential. In an IAC, that question can be resolved straightforwardly by article 54(3)(b) which prohibits the removal of indispensable objects whenever that action would “leave the civilian population with such inadequate food or water as to cause its starvation or force its movement,” regardless of purpose. The NIAC prohibition, however, specifies only that indispensable objects may not be removed for the purpose of the starvation of civilians.
The Commission is probably right not to overcomplicate this point. It is difficult to see how removing indispensable objects for an illegal purpose (pillage) could obviate the starvation prohibition when it would otherwise apply. Moreover, an argument analogous to that offered above in the encirclement context may also be viable here—the deprivation of the objects is not a collateral impact, it is the predicate purpose necessary to the completion of the pillage.
In the case at hand, such reasoning may not have been necessary. Given the broader destructive context within which the actions occurred, it is likely that the Commission simply viewed the operations in question as underpinned plainly by overlapping purposes, with the starvation objective a primary one.
In sum, although the principles underpinning its analysis could have been more comprehensively elaborated, the report would appear to support a broad (and in my view correct) understanding of what counts as starvation in the IHL prohibition and war crime.
Human Rights Law
A final point of interest in the report is its use of human rights law. Much of the abundant scholarly work on the interaction between IHL and IHRL focuses on a purported tension between civil and political rights, such as the rights to life and liberty, and the related IHL rules on targeting and detention. Starvation, however, implicates a number of additional rights, including several key economic, social, and cultural (ESC) rights—most obviously, the right to food (art. 25 Universal Declaration on Human Rights (UDHR) and art. 11 International Covenant on Economic, Social, and Cultural Rights (ICESCR)). Although ESC rights have been applied alongside IHL by key authorities, such as the International Court of Justice (paras. 112, 133-34), the interaction between those rights and the provisions of IHL has received relatively little attention thus far (for a particularly relevant exception, see here; more generally, see here and here).
Several passages of the report are of interest from this perspective. The Commission notes (correctly) that “a failure to fulfil the right to food or freedom from hunger does not automatically constitute starvation as a war crime, in particular if there was no deprivation of indispensable objects or where an individual did not intend to starve civilians as a method of warfare.” (para. 8). The implication is not that human rights are reduced to the narrower IHL or war crimes requirements. On the contrary, the Commission appears clear that the broader ESC obligations apply notwithstanding the co-application of IHL. (para. 8). The report cites the African Commission on Human and Peoples’ Rights (ACmHPR) for the position that under the African Charter on Human and Peoples’ Rights (ACHPR), states must mitigate and alleviate hunger even in times of natural or other disasters, and (elsewhere in its jurisprudence) the more specific principle that civil war may not be invoked to justify a state’s failure “to guarantee rights protected under the Charter.” (para. 41).
However, the analysis is then muddied somewhat by the Commission’s reliance for the latter proposition on the ACmHPR’s view that, “even if Sudan [the subject of the ACmHPR’s analysis in the cited case] is going through a civil war ….. the state must take all possible measures to ensure that they are treated in accordance with international humanitarian law.” (para. 41) This raises the possibility that IHL ought to play a dominant (if not exhaustive) role in evaluating the relevant ESC rights issues in a context of armed conflict. It is notable also that the Commission on Human Rights in South Sudan’s articulation of the minimum core of the right to food requires action that would clearly also be required under IHL— “the government should not destroy or contaminate food sources.” (para. 8) Moreover, in addition to citing the ACmHPR for the general duty to mitigate and alleviate hunger and to guarantee the right to food in armed conflict, the report also focuses specifically on the latter’s articulation of a duty to refrain from and protect against violations of the minimum core of the right, and refrain from using access to food as a political tool to reward supporters, punish opponents, or recruit militias (para. 40).
In this context, recognizing the distinct and autonomous IHRL obligation to mitigate and alleviate hunger is important. However, it would have been useful to say more about what that means in armed conflict and whether it has any significance for how we ought to understand IHL duties in this context. For example, whereas IHL precludes the arbitrary denial of humanitarian access to those in situations of undue hardship, human rights law would more straightforwardly impose on the state the primary obligation to alleviate hunger (here, para. 11; here, pp.743-47). However, the Commission does not consider whether that positive human rights obligation and the jurisprudence around it could inform an analysis of IHL or the derivative war crime, perhaps by building on the suggestion in the ICRC Commentary that “[t]o deliberately decide not to take measures to supply the population with objects indispensable for its survival in a way would become a method of combat by default, and would be prohibited.” (para. 4800).
The Commission does question the government’s tendency “to outsource its responsibilities towards internally displaced persons – citizens of South Sudan – to humanitarian aid organisations and international donors” and notes that opposition forces, such as the SPLA-IO (RM) have similarly done little to provide support to displaced persons (para. 132). However, these observations arise in an analysis of the Revitalised Agreement on the Resolution of the Conflict in South Sudan (para. 132), so it is unclear what, if any, significance they have for the IHL or war crime provisions.
On the issue of humanitarian access, it is not clear whether the Commission considers the IHRL jurisprudence on the right to food (or other relevant human rights) to be a factor in determining what supply levels would be adequate (as suggested here, p. 746) and whether the denial of humanitarian access to populations in need would be arbitrary, and thus violate IHL (as suggested here, para. 51).
In short, the report appears to be clear in articulating a role for ESC rights that is not simply subsumed by IHL, but the interaction between the two (if any) remains unstated. This lack of clarity follows through into the Commission’s analysis of specific acts. Earlier this year, in its general report, the Commission had:
- reported attacks on objects indispensable to civilian survival, the denial of access to such objects, and the looting thereof by both government and opposition forces,
- determined that the government had both failed to “use all resources at its disposal to prioritize access to food” and had diverted disproportionate resources to the conflict, with corruption and embezzlement further siphoning funds “at the expense of the starving population,
- and found that the government had failed to prevent, investigate, or punish the perpetrators of relevant crimes. (Annex II, para. 43).
Without distinguishing among those actions, the Commission went on to hold that they violated
- articles 14 and 18 of Additional Protocol II
- article 8(2)(e)(xix) of the ICC Statute,
- the right to food as articulated in article 25 of the Universal Declaration of Human Rights
- the right to food in the African Charter on Human and Peoples’ Rights (as protected implicitly through the rights to life, health, and economic, social, and cultural development),
- and articles 9(3) and 11 of the South Sudanese Constitution (on the incorporation of international law) (Annex II, paras 44-46)
It is unlikely that the Commission meant to imply that each of the acts in the first list violates each of the legal provisions invoked. For one thing, article 18 of Protocol II is specific to humanitarian access, and a number of the wrongful acts are not tied to that question. However, in the absence of specificity here, one can only speculate as to whether the Commission views corruption and embezzlement or the disproportionate diversion of resources to the war effort (for example) to be relevant only to IHRL, or also to IHL and ICL (and if so how). In its evaluation of actions in Western Bahr el Ghazal, the October report includes a sequence of similar paragraphs summarizing wrongful acts and the IHL, ICL, IHRL, and constitutional provisions violated (paragraphs 88-91). However, it too omits any analytical connection between either the factual and the legal findings, or the different legal frameworks.
Separately, the report misses an opportunity to consider the full array of ESC rights implicated by the prohibition of starvation under IHL. In accordance with broad (though not universal (p.789)) consensus on the matter, the report argues that “starvation” in IHL “should be understood to encompass deprivation not just of food and water but also of other goods essential for survival in a particular context.” (para. 36). In elaborating the significance of that broad understanding of the IHL prohibition, the Commission might have considered the degree to which a wider range of ESC rights (such as rights to housing and health or medical care—art. 25 UDHR, arts. 14, 16, 18 ACHPR) as well as civil and political rights (such as the right to life—art. 3 UDHR, art. 4 ACHPR) are at stake in the starvation ban, and (if so) how they relate to the scope and content of the IHL and ICL rules, and inform analysis of the destruction of homes (e.g. para. 68) or confiscation of medicine (e.g. para. 106) in the conflict. Currently, the report notes these other rights only insofar as they imply or underpin the right to food. (paras. 39, 46, 90-91). Considering them independently would broaden the analysis and would support the engagement of special procedure mechanisms and bodies focused on those rights (and on global public health).
Issues of applicable law and coordinated interpretation to one side, perhaps the most important concrete implication of the invocation of human rights law in this context is that it underpins the Commission’s position on victims’ and survivors’ rights to reparation (including via compensation) and the restoration of rights (paras. 40, 45). In that respect, whatever its interaction with IHL, human rights law has a central role to play in the Commission’s broader transitional justice mandate.
There is Nothing Left for Us is a critically important report both in spotlighting the situation in South Sudan and in contributing to the intensifying focus on starvation as a method of warfare as a phenomenon of international legal and political concern. As work on the legal issues develops, key questions relating to the meaning of the core prohibition and the role of human rights law will continue to percolate. In the meantime, however, one should not lose sight of the grave violations detailed in the report and the profound human suffering that is their consequence.
Image: Children collect grain spilt on the field from gunny bags that ruptured upon ground impact following a food drop from a plane at a village in Ayod county, South Sudan, where World Food Programme (WFP) have just carried out a food drop of grain and supplementary aid on February 6, 2020. (Photo by TONY KARUMBA/AFP via Getty Images)