Criminalizing Starvation in an Age of Mass Deprivation in War: Intent, Method, Form, and Consequence

Mass starvation in war is resurgent. Across a range of conflicts, belligerents have attacked farmers and humanitarian workers; destroyed, looted, or rendered unusable food and food sources; and cut off besieged populations from the external supply of essential goods. Millions have been left in famine or on the brink thereof. Increasingly, this has elicited calls for accountability. However, traditional criminal categories are not promising in this respect. The situation and nature of objects indispensable to survival is such that they typically provide sustenance to both civilians and combatants; the conduct that deprives people of those objects often involves acting on the objects, rather than acting directly on the affected persons; and the causal chain from deprivation to civilian suffering is long and complex. Appropriately, then, attention has turned instead towards the recently codified and largely untested war crime of starvation of civilians as a method of warfare. Whether and how this framework can underpin a legal response to mass deprivation hinges on how key debates as to the crime\u27s meaning are resolved. Entering those debates, this Article debunks the common view that the starvation crime attaches only to conduct that seeks to weaponize civilian suffering. Instead, it presents an alternative theory according to which the crime should be understood transitively as focused primarily on the act of deprivation, rather than the outcome it produces. This approach would reshape how to think about the crime, with particularly acute implications for the regulation of sieges and blockades

Why Have We Criminalized Aggressive War?

On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether it involves a particular form of interstate wrong. However, that is not why such wars are criminal. Aggressive war is a crime because it entails killing without justification. Five reasons explain why this is so. First, banning aggression restricted states from using force to protect their core sovereign rights, including even their rights of political independence and territorial integrity. Those core states’ rights cannot make sense of the move to ban aggression. Second, what distinguishes aggression from any other sovereignty violation—what makes it criminal, when no other sovereignty violation is—is not that it involves an especially egregious violation of territorial integrity or political independence, but that it involves killing without justification. Third, the unjustified killing account makes sense of aggression’s standing alongside genocide, war crimes, and crimes against humanity. The traditional notion that aggression is a crime against sovereignty instead isolates aggression as the inexplicably odd crime out. Fourth, the public reasons for restricting jus ad bellum rights in the early twentieth century focused not on infringements of states’ rights but on the infliction of death without justification. Finally, the importance of wrongful killing to the criminalization of aggression was apparent at the post-World War II tribunals at Nuremberg and Tokyo. Understanding the crime in this way matters doctrinally. This understanding clarifies the boundaries of the crime, resolving hard cases like unilateral humanitarian intervention and bloodless invasion. It also has implications for the legal rights of soldiers involved on either side of such wars

Encirclement, Deprivation, and Humanity: Revising the San Remo Manual Provisions on Blockade

Among the most pernicious trends in contemporary armed conflict is the return of mass starvation in war, in some cases as its primary source of human suffering. This has prompted a renewed focus on the relevant rules of international humanitarian law (IHL). On some issues, there is relative consensus. On the issue of deprivation by encirclement, however, there is confusion. Some have questioned whether the prohibition on the starvation of civilians as a method of warfare applies to encirclements at all, particularly in the naval context. Others have interpreted the prohibition vanishingly narrowly. In contrast to the more extreme of these positions, the San Remo Manual applies the starvation ban to naval blockades. However, its reframing of the ban introduces gaps and ambiguities that deviate from existing IHL. With the Manual’s revision process underway, there is an opportunity to remedy these infirmities. This article charts the historical trajectory of starvation in IHL, exposes the vulnerabilities in the Manual’s articulation of the law of blockade, debunks arguments for the permissibility of encirclement starvation, and makes the case for recognizing a categorical prohibition on the starvation of civilians in armed conflict. It maps the path forward for the Manual’s revision, proposing changes to the blockade provisions and emphasizing the importance of extending the Manual’s starvation rules to other modes of naval warfare. It also spotlights the need for the revision to cover the law of non-international armed conflict at sea and the role of international human rights law in naval warfare

Siege Starvation: A War Crime of Societal Torture

A recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified. A common way of thinking about the criminal wrong is as a form of killing or harming civilians. Although its differentiating particularities matter, the basic wrongfulness of the crime inheres, on this view, in it being an attack on those who ought not be attacked. For some, this supports a broad interpretation of the starvation ban. However, for others, the graduality of starvation preserves the continuous possibility of the avoidance or minimization of civilian death or harm in a way that direct kinetic attacks do not. In combination with the method’s purported military utility, this distinctive incrementalism has underpinned arguments for the permissibility of certain forms of siege and other deprivation and a narrow interpretation of the starvation crime. Drawing on the moral philosophy of torture, this Article offers a different normative theory of the crime. Starvation, like torture, is peculiarly wrongful in its distortion of victims’ biological imperatives against their capacities to formulate and act on higher-order desires, political commitments, and even love. This process does not merely raise the cost of fulfilling those commitments. Instead, starvation tears gradually at the very capacity of those affected to prioritize their most fundamental commitments, regardless of whether they would choose to do so under the conditions necessary to evaluate matters with a “contemplative attitude.” Rather than palliating, the slowness of starvation methods is at the crux of this torturous wrong. Recognizing this redefines the meaning and place of the crime in the framework of international criminal law

Siege Starvation: A War Crime of Societal Torture

A recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified. A common way of thinking about the criminal wrong is as a form of killing or harming civilians. Although its differentiating particularities matter, the basic wrongfulness of the crime inheres, on this view, in it being an attack on those who ought not be attacked. For some, this supports a broad interpretation of the starvation ban. However, for others, the graduality of starvation preserves the continuous possibility of the avoidance or minimization of civilian death or harm in a way that direct kinetic attacks do not. In combination with the method’s purported military utility, this distinctive incrementalism has underpinned arguments for the permissibility of certain forms of siege and other deprivation and a narrow interpretation of the starvation crime. Drawing on the moral philosophy of torture, this Article offers a different normative theory of the crime. Starvation, like torture, is peculiarly wrongful in its distortion of victims’ biological imperatives against their capacities to formulate and act on higher-order desires, political commitments, and even love. This process does not merely raise the cost of fulfilling those commitments. Instead, starvation tears gradually at the very capacity of those affected to prioritize their most fundamental commitments, regardless of whether they would choose to do so under the conditions necessary to evaluate matters with a “contemplative attitude.” Rather than palliating, the slowness of starvation methods is at the crux of this torturous wrong. Recognizing this redefines the meaning and place of the crime in the framework of international criminal law