09 Aug “All Our Hope Is in the Famine”: Why an Investigation into Starvation Crimes in Ukraine Is Urgently Needed
[Anna Mykytenko is a Senior Legal Adviser and Ukraine Country Manager and Maksym Vishchyk is a Legal Adviser with Global Rights Compliance Foundation. In recent years they have been involved in various projects aimed at strengthening Ukraine’s capacity to investigate and prosecute atrocity crimes, including Mobile Justice Teams assisting current conflict-related investigations and the MATRA-Ukraine project ”Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes”.]
Before diving into the discussion, it is necessary to outline the term “starvation crimes”, which we define as the intentional deprivation of objects indispensable to the survival of civilians (OIS) intended to cause starvation. This involves impeding the capacity of targeted civilians to access the means of sustaining life.
Russia’s full-scale invasion of Ukraine is associated with a range of starvation-related tactics, such as sieges, obstruction of humanitarian access, pillaging of agricultural machinery and shelling of OIS. The significant number of such incidents has led some to question whether this is part of a deliberate policy by Russia to coerce and starve the population of Ukraine into submission. While destruction, damage or pillage of agricultural facilities are directly linked to possible war crimes, other tactics are disguised, e.g. promises to unblock ports and allow grain export from Ukraine in exchange for lifting sanctions imposed on Russia, which would inevitably feed its war machine.
The immediate consequences of Russia’s conduct are both internal and external. In Ukraine, while the number of starvation-related casualties is yet to be established, about 10.2 million residents urgently need food and livelihood assistance. The population of a once food-secure country and major grain exporter has, thus, been forced to relive the horrors of its past: Holodomor, World War II and ensuing hunger.
Externally, the Russian blockade of grain export exacerbates the existing food emergency and risks tipping “tens of millions of people over the edge into food insecurity, followed by malnutrition, mass hunger and famine, in a crisis that could last for years.”
On the face of it, Russia’s conduct in Ukraine raises allegations of the use of starvation as a method of warfare as prohibited by Additional Protocol (AP) I, Article 54(1); Customary IHL, Rule 53. The facts briefly analysed below demonstrate that an investigation is required into the war crime of intentionally using starvation as a method of warfare in an international armed conflict under Article 8(2)(b)(xxvi) of the Rome Statute. Together with its partners, Global Rights Compliance, a foundation specialising in international law to address and alleviate acute humanitarian needs, is in the advanced stages of putting together such an investigation closely linked with its ongoing activities of Mobile Justice Teams (MJTs), and Ukrainian authorities agree that it is of critical importance for the following reasons
War Crime of Starvation and the Situation in Ukraine
Four elements must be established to prove that the Article 8 war crime of starvation under the ICC’s Rome Statute was or is being committed. These elements are (i) the perpetrator deprived civilians of objects indispensable to their survival; (ii) the perpetrator intended to starve civilians as a method of warfare; (iii) the conduct took place in the context of and was associated with an international armed conflict; and (iv) the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
It is internationally accepted that the conflict waged by Russia in Ukraine bears an international character, rendering for the first time the opportunity to have this crime tested before the ICC. To date, all other conflicts where starvation has been used have been deemed non-international in character. The last element is thus prima facie satisfied, whereas each of the first two elements of the crime of starvation which are more complicated will be discussed below.
Deprivation of OIS
Under Article 54(2) of AP I, OIS include but are not limited to “foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works”. The list is non-exhaustive and depends on the context. OIS can include any civilian essentials, e.g. medications, clothing, blankets, means of shelter, gas, fuel and electricity (see GRC, Starvation Briefing Paper, paras 29-30; AP I Commentary, paras 2102-2103). They are also situation specific – so what was indispensable in February in Mariupol may well be different now in July. Deprivation of OIS with the intent to starve civilians can take various forms, e.g. attacking, destroying, removing objects or rendering them useless. In Ukraine, facts on the ground demonstrate several patterns of such deprivation.
A. Siege Tactics and Obstruction of Humanitarian Access
Siege tactics employed by Russia in the early weeks of the war left thousands of civilians trapped in the besieged cities, such as Mariupol, Chernihiv, Sumy, Izium and other areas where the UN and its partners were unable to reach and where “people [were] in desperate need of support”.
Specifically, the residents of Mariupol could not leave the city, and humanitarian aid convoys on their way in were either blockaded, looted or both. In violation of Geneva Convention IV (GC), Article 23, AP I, Article 70(2), and Customary IHL, Rule 55, Russia is said to have blocked humanitarian relief to those in need in Mariupol. As a result, residents were deprived of water, food, electricity, heat and other utilities during the winter months. Three weeks into the siege, people in Mariupol were “so hungry they are killing stray dogs for food” and drinking snow.
In the north of the country, after the frontier city of Sumy was encircled on 25 February, critical supply routes were blocked, and the food stocks dwindled, putting the population in serious humanitarian need. Humanitarian access was impeded until 18 March, when the first UN-led relief convoy reached Sumy and nearby communities. Local residents continued to have little to no access to food, water, and medications until the Russians retreated from the area in early April.
Further along the frontline, in the Kharkiv region, after the Russian troops failed to capture the city of Izium in early March, they besieged it for around three weeks until the control was gained. Throughout the siege, the dire living conditions kept deteriorating, while the evacuations from the city remained “very risky.” Eyewitnesses reported being mostly dependent on the food and other necessities stockpiled before the siege in their apartments in multiple-storey buildings, but they were often unable to leave their basements to reach those due to constant shelling.
While sieges are not illegal per se, the deprivation of OIS and impeding humanitarian access, which in Ukraine, like in many other conflicts, came hand in hand with sieges, are prohibited under IHL (see here and here). These siege tactics are compounded by other unlawful conduct of hostilities which, when viewed together, suggest a policy intended to starve Ukraine into submission.
B. Indiscriminate Shelling and /or Targeted Attacks on Civilian Infrastructure
As soon as the Ukrainian population refused to succumb to the prevailing Russian forces, the latter turned to artillery and aviation attacks against civilians and OIS, including indiscriminate shelling and causing damage disproportionate to anticipated military advantage. In some areas, soon after the full-scale invasion began, the damage caused to the hospitals, electricity, water and sanitation installations effectively left civilians “without the basics for day-to-day life”, according to the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator.
For example, in Mariupol, incessant bombing destroyed electricity lines, gas and water pipes and left some 200,000 people no choice but to melt snow and collect rainwater. In Izium, Sumy and Okhtyrka, constant and “completely chaotic” airstrikes and shelling caused electricity blackouts and an inability to supply water, heat and gas. In Kharkiv, shelling destroyed many grocery stores, shopping malls, markets and humanitarian aid centres, with the supplies dwindling in the first weeks. In Severodonetsk, most of the civilian infrastructure was damaged or destroyed, leaving around 15,000 civilians without electricity, gas and water.
The situation in Chernihiv in March was described as an “urban death trap” that resembled Mariupol. Persistent shelling left the blockaded city without essential supplies and put the civilian population under constant threat of falling victim to the missiles while searching for food and water. In an incident on 16 March alone, around 100 civilians queuing for bread near the local shop came under an artillery strike leading to 14 deaths and many more injured. The next day, an attack killed and injured civilians queuing for water in Chernihiv’s city centre. Such incidents also occurred in Kharkiv, Mykolaiv, Severodonetsk, Avdiivka, and Vuhledar. In one of the latest cases, a missile reportedly hit a water line in Lysychansk, killing eight and injuring 21 civilians queueing for water.
Notably, hospitals throughout the country appear regularly targeted. The WHO’s Surveillance System for Attacks on Healthcare documented 314 such attacks impacting healthcare facilities as of 11 July.
While many of the above-listed attacks amount to war crimes on their own, when viewed in the context of the previous and forthcoming Russian tactics, they appear to demonstrate a pattern of deprivation of OIS. The effects of such deprivation become more acute in the face of upcoming winter, especially given the serious damage to the energy infrastructure resulting from attacks.
C. Attacks Against and Pillage of Food Storage Facilities, Agricultural Machinery, and Blockade of Ports
Among other civilian objects, food storage facilities appear to have been regularly and deliberately targeted. Attacks destroyed shops, shopping malls (e.g. here, here, including the latest incident in Kremenchuk) and food storage facilities in the Luhansk region, Okhtyrka, Kharkiv, Krasylivka, and Brovary district.
Additionally, Russian forces reportedly targeted grain elevators and storage facilities (in Luhansk, Dnipropetrovsk, Sumy, Odesa, and Kharkiv regions), farms (in Kharkiv and Sumy regions), and fertiliser warehouses and plants (in the Mykolayiv and Odesa regions). Among the recently destroyed objects was the second-largest grain terminal in Ukraine in Mykolayiv, attacked on 4 June.
The attacks went beyond destroying the already existing food to destruction and appropriation of the means of food production, e.g. agricultural equipment, right at the start of the sowing season. Even with the equipment preserved, farmers in the Sumy, Kyiv and Chernihiv regions sometimes could not sow their fields because of landmines, shortage of fertilisers and fuel, and/or threats of further attacks in the fields in the southern and eastern regions. Since the harvesting season commenced in early July, the fire resulting from the attacks has devastated the ripened grain harvest in the fields along the 1,000 kilometres frontline that is stretched mostly through farmlands.
On a larger scale, since late April 2022, the Ukrainian authorities accused the Russian forces of stealing “several hundred thousand tons” of grain, which Russia denied. In parallel, the Russian blockade of the Ukrainian ports has precluded millions of tons of grains from being exported to countries highly dependent on Ukrainian supplies, which threatens to deepen the global food crisis, according to the UN. While IHL does not prohibit blockades per se, the establishment of a blockade is prohibited if its sole purpose is starving the civilians or denying them other objects essential for survival, or the damage to the civilian population is (or is expected to be) excessive in relation to the concrete and direct military advantage anticipated. In the latter case, naval blockades of the type we are seeing in Ukraine have become part of a typical starvation playbook employed previously in various contexts, e.g., in Yemen.
Intent to Starve Civilians of Ukraine
The war crime of starvation requires that the perpetrator deprives civilians of OIS with an intent to starve them, even if that consequence does not occur in the end. The crime may be committed when a perpetrator knows that starvation would occur in the ordinary course of events. The evidence of intent does not need to be direct, i.e. such intent may be inferred from the acts and consequences on the ground (paras 47, 50, 81).
Whilst some sources claim that the use of starvation is a purposeful tactic of war in Ukraine, currently, only circumstantial evidence confirms this. In any future investigation or prosecution, intent may also be inferred from the denial of humanitarian relief to the besieged cities and heavy indiscriminate shelling, including the incidents currently investigated by the Ukrainian authorities with assistance of MJTs.
Likewise, statements of the Russian Defence Ministry may go towards proving intent. For example, on 4 March, the Ministry’s statement on the “humanitarian catastrophe” in Kyiv, Kharkiv, Chernihiv, Sumy and Mariupol demonstrated that it was aware of the deteriorating situation in the besieged cities. Nevertheless, the attacks and sieges continued, suggesting that “the only interpretation is that [the Russian forces] want to create hunger and to use this method as a method of aggression”, according to the EU agriculture commissioner, Janusz Wojciechowski. While such statements can be indicative of obstruction of the rapid and unimpeded passage of relief consignments – an IHL obligation incumbent upon all Parties to the conflict (Geneva Convention IV (GC), Article 23, AP I, Article 70(2), and Customary IHL, Rule 55) – they can also be used to infer the intent and knowledge.
In a broader perspective, references to global famine as an instrument of war have begun to spread in the Russian public discourse. While moderating a panel with Vladimir Putin during the recent economic forum, a prominent editor-in-chief of Russian state-controlled media outlet Russia Today, Margarita Simonyan, mentioned hearing an outcry “several times from different people” in Moscow saying: “All our hope is in the famine.” In the words of Simonyan, “the famine will start now and [the West] will lift the sanctions and be friends with us because they will realise that it’s necessary.”
This is, of course, a peripheral overview of the question of intent, which for a specific-intent crime like that of starvation will be at the heart of any investigation and prosecution.
Conclusion: Urgent Investigation Needed
Nearly five months into the full-scale war, indicators of using starvation as a method of warfare by Russia are increasingly apparent. Many episodes of deprivation of OIS throughout conflict-affected areas start to fold into patterns, raising grounds to believe that the material elements of the war crime of starvation are satisfied. The ICC thus should be prepared to receive targeted submissions on this crime given its centrality in the conflict and to initiate an efficient investigation. Likewise, domestic jurisdictions should be aware of the parameters of the crime to ensure it is robustly and effectively investigated. Since Holodomor, Ukraine has been too familiar with the crime of starvation, physical and psychological damage it causes and its intergenerational effects. Unlike the Holodomor times, however, now there are procedures and mechanisms to bring the perpetrators of starvation to responsibility – this is the rare opportunity that demands the attention of international and domestic institutions