20 Dec It Takes Two: The Protection of Civilians during Sieges under the IHL Prohibition against Starvation and the Right to Food
[Christian Durisch Acosta holds a MAS in International Law of Armed Conflict (Geneva Academy) and has worked with several UN organisations (OHCHR in Honduras, UNAIDS in Mozambique, OCHA in Burkina Faso).]
On 6 December 2019, the Rome Statute was amended as to include the intentional starvation of civilians as a war crime in non-international armed conflict. Up to then, it only figured as a war crime in international armed conflicts. Undoubtedly, this significant development was spurred by the horrific accounts on siege-induced mass starvation in Syria and Yemen.
The second anniversary of the amendment offers an opportunity to reflect upon the international legal protection of civilians against starvation when siege operations are carried out in densely populated areas. I suggest to be a bit more like portfolio managers when approaching this issue: instead of focusing only on one asset, i.e. IHL, why not diversify into IHRL? In the specific case discussed herein, the protective scope of the IHL prohibition against starvation of civilians – on which the 2019 amendment is based – varies greatly depending on the interpretations that have been proposed. Then there are also other challenges, such as slow progress in ratifications of the amendment. In the light of this, adding IHRL to the mix seems worthwhile due to the legal and policy advantages it may bring.
Interpreting the IHL Prohibition against Starvation of Civilians during Sieges
Siege operations can be grossly divided into encirclement and bombardment measures. Encirclement aims at isolating the besieged forces in order to impose conditions of material attrition. In addition, modern sieges typically involve artillery or aerial attacks, whereas bombarding critical infrastructure may significantly increase the level of deprivation. IHL contains numerous rules that limit siege warfare. The prohibition against starvation of civilians (Article 54 AP I; Article 14 AP II; CIHL Rule 53 and 54) is among the most discussed. The prohibition sets the boundaries for the use of starvation directed against fighters as a legitimate method of warfare. In clear-cut situations (e.g. encircling a military fortress) the prohibition is usually not engaged. During contemporary sieges however, which commonly involve scenarios in which starvation is directed against an armed group located in city, serious questions about the lawfulness of this military tactic arise.
It is controversial whether the prohibition refers to purposeful starvation of civilians only. The majority of IHL experts hold that it does. Hence, if siege operations incidentally happen to cause starvation of civilians, this would be permitted (Rule 53; ICRC Commentary to AP II). Another view contends that the provision should be read as a whole (i.e. with Article 54(3) AP I). Such an interpretation, which is also available for Article 14 AP II, would prohibit incidental starvation of civilians. Very few scholars have however stressed that Art. 54(2) only prohibits certain conducts (i.e. ‘attack, destroy, remove or render useless’) and hence, to otherwise prevent an area from being resupplied would still be possible.
Some scholars have furthermore introduced the view that military conduct involving starvation is restricted by the rules on proportionality and precautions, and the prohibition of indiscriminate attacks. Indeed, if encirclement measures were regulated by either one of these rules, many contemporary sieges would appear to be outright unlawful. The caveat of this argumentation is that it is contingent on whether such measures qualify as attacks under IHL (Article 49(1) AP I). Because if they don’t, the proportionality rule, for instance, would not apply. At present, there seems to be no general agreement among experts on this question.
The lack of a commonly accepted interpretation is not very encouraging for victims eager to secure justice. Neither is the fact that proving ‘purposeful’ starvation of civilians is difficult. All this may translate into low prospects for meaningful criminal prosecution.
The Protection of Civilians from Starvation during Sieges under the Right to Food
It is widely accepted that human rights law continues to apply during armed conflict in a complementary manner. The application of the right to food (Art. 11 ICESCR) to armed conflict, and siege operations in particular, is though not straightforward, and only a very few experts, such as Hutter, have dealt with the interplay of the right to food with IHL. First, there is the question of jurisdiction. It is true that in today’s most common siege scenarios, i.e. when state forces besiege a densely populated space on its own territory, the state may lack control over these parts. Practice of human rights bodies suggests though that siege scenarios are unlikely to translate into reduced state obligations vis-à-vis the besieged population when undertaking military actions. Extraterritorial jurisdiction also appears to exist. Secondly, it is controversial whether human rights obligations for armed groups exist or not. Finally, there is the difficulty to determine the actual content of the right to food applicable during armed conflict. Obviously, the obligations to respect, protect and fulfill the right to food cannot be the same as during peacetime. Its non-derogable minimum core, which corresponds to the fundamental right to be free from hunger (Art. 11(2) ICESCR) and which is intrinsically linked to the right to life, must certainly be ensured. It guarantees access for everyone to the minimum essential level of food which is sufficient, nutritionally adequate and safe, to ensure freedom from hunger (CESCR, General Comment 12). Beyond the minimum core however, the applicable content becomes elusive. Normally, it could be determined through limitations and derogations, but practice of human rights bodies seems inconclusive. Taking this road would mean to face the controversy whether security-based limitations – to which encirclement would amount – and derogations are available under the ICESCR.
Despite these difficulties, examining sieges under the right to food is worthwhile. Siege operations are susceptible to violate it in many ways. When a besieging state bombards objects that are relevant for food security, such as bakeries in Syria, or when encirclement aims at starving out an enemy located in a city, this disregards the duty to refrain from actions that interfere with the access to food of civilians. When the besieging state prevents humanitarian food aid, the obligation to fulfill is breached (General Comment 12).
The right to food lens also helps spotting other potentially illegal facets of siege operations. The accessibility-dimension can frame food prices as a violation of the right to food if they become inaccessibly high as a result of encirclement-induced market distortions. If state agents are directly involved in ‘siege economies’, the obligation to respect is engaged. If controlled by others, the state fails to upheld its obligation to protect (General Comment 12). The adequacy-element of the right to food sensitizes on quality and diverse dietary needs of people, such as pregnant and breastfeeding women or the chronically ill. For instance, people living with HIV depend on nutritious food and unmet dietary needs of pregnant women and newborn children may cause stunting.
The Interplay between the Prohibition against Starvation and the Right to Food
A human rights analysis without considering the interplay with IHL is however only of limited use. When faced with the challenge to extract meaning of the interplay between two simultaneously applicable rules, the methods of lex specialis and systemic integration offer help. Generally speaking, rules may be aligned, mutually reinforcing or fill in gaps. In a few instances though, there are tensions.
An obvious contradiction emerges between the fundamental right to be free from hunger, which applies to all human beings, and the legitimate use of starvation as a method of warfare against fighters under IHL. Both the lex specialis and systemic integration lead to a similar result: fighters are excluded from their fundamental right in such situations, because starving them out does not constitute an arbitrary deprivation of life due to the existence of a respective IHL rule.
As regards to civilians, the interplay strengthens their protection from starvation during sieges. The interplay seems to prohibit encirclement measures that cause disproportionate starvation of civilians. Here, the right to food is able to clarify the ambiguity of the IHL prohibition regarding incidental starvation. Its minimum core does not allow for this. It contains detailed elements that inform on the quantity and quality of the minimum essential levels of food that must be accessible. This clarity is in stark contrast to the ambiguous silence in the IHL provision. Furthermore, the right to food is indifferent to the ‘attack-controversy’. It is concerned with any kind of deliberate conduct, violent or not. These observations are relevant in the light of what the ILC calls the ‘omnipresence of law’. Accordingly, the fundamental right to be free from hunger, considered as the general law, still influences the application and interpretation of the IHL prohibition on starvation, considered as the special law. As a result, the interplay pushes for an interpretation of the said IHL rule that proscribes disproportionate collateral damage.
In conclusion, bringing in the right to food is good news for civilians affected by sieges. It clarifies unsettled questions when interpreting the IHL prohibition against starvation and may capture humanitarian consequences caused by sieges in legal terms. It also offers policy advantages. There is a diverse set of accountability mechanisms under IHRL, some of them endowed with individual complaints procedures. And since these mechanisms have become increasingly flexible to frame IHL violations in their own legal terms – or ESCR violations in CPR terms – investing efforts in the complementary application of human rights during armed conflict seems even more promising.