Switzerland Proposes the War Crime of Starvation in NIAC

The irreplaceable Carmi Lecker called my attention yesterday to a proposal by Switzerland to deem the intentional starvation of civilians a war crime in non-international armed conflict (NIAC). At present, it is only a war crime in international armed conflict (IAC) — Art. 8(2)(b)(xxv) of the Rome Statute. Here is the text of the proposal:

Add to article 8, paragraph 2 (e), the following:
“(xix) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies.”

The provisions parallels Art. 8(2)(b)(xxv), except that the IAC provision says “impeding relief supplies as provided for under the Geneva Conventions.” I don’t believe that is a substantive difference, but more knowledgeable readers should feel free to correct me.

The proposal will be considered at the next Assembly of States Parties (ASP), as provided for by Art. 121(2) of the Rome Statute. If a majority of the ASP votes to take up the proposal, the ASP will either consider it then or convene a Review Conference — almost certainly the former, given that there was a Review Conference less than two years ago. Adopting the amendment would require 2/3 of States Parties to vote in favour of it, pursuant to Art. 121(3).

I will be surprised if the amendment is not taken up and adopted. Even acknowledging that states do not like to tie their hands against internal threats, there is no justification for starving civilians as part of a counterinsurgency. And, of course, NIACs regularly feature the intentional starvation of civilians — most obviously in Syria and Yemen.

To be sure, the amendment would have little practical impact on the ordinary jurisdiction of the ICC. The Rome Statute has a notoriously restrictive amendment regime, particularly concerning the substantive crimes. Under Art. 121(5), the starvation amendment would only apply to States Parties that ratified the amendment; the Court would have no jurisdiction over starvation when committed by a nationals or on the territory of a State Party that refused to ratify.

The amendment’s real utility, however, would come in the context of Security Council referrals. If the amendment is adopted, a future Security Council referral of either Syria or Yemen (I know, unlikely) would make it possible for the OTP to prosecute starvation of civilians in those states.

Kudos to Switzerland for proposing the amendment. Let’s hope it is adopted without controversy.