“Let me be clear: The use of starvation as a weapon of war is a war crime.”
These are the words of UN Secretary General Ban Ki-Moon, uttered in connection with the starvation of civilians in rebel-held Madaya, a suburb of Damascus encircled by forces, including Hezbollah, loyal to the Assad government. His condemnation of the situation in many parts of Syria was echoed this week by US Secretary of State John Kerry who, in connection with the start of the Syrian negotiations (now suspended), bluntly stated:
[P]eople are dying; children are suffering not as a result of an accident of war, but as the consequence of an intentional tactic – surrender or starve. And that tactic is directly contrary to the law of war.
Below, I discuss the international law underlying these charges and the challenges of prosecuting siege warfare and the deliberate use of starvation as a weapon of war. These offenses exemplify the central legal dilemma discussed in my prior post mapping the law that applies to war crimes in Syria: what to do when there is a well-established legal prohibition amounting to an international crime without a ready forum empowered to prosecute it?
Starvation in Syria
The city of Madaya — which has been described as “an open-air prison” — has been under siege for months, its inhabitants reduced to eating grass. The Syrian government has arbitrarily barred the delivery of humanitarian aid, including by the International Committee of the Red Cross. There are also allegations based upon a leaked internal memo that the UN could have acted sooner and more forcefully to bring humanitarian aid into the city, but was wary of alienating the Assad regime and derailing the planned negotiations. These barriers to the provision of food and other forms of aid exist notwithstanding that the Security Council issued several forceful resolutions in 2014–15:
- calling on all parties to lift all sieges on populated areas (UNSCR 2139),
- condemning the Syrian government’s arbitrary withholding of consent to humanitarian actors,
- authorizing the delivery of aid without express permission through certain identified border crossings,
- calling upon all parties to implement ceasefires and humanitarian pauses to enable the provision of humanitarian assistance (UNSCR 2165), and
- decrying the “use of starvation of civilians as a method of combat” (UNSCR 2258).
To be fair, there are government-controlled towns, notably Fuaa and Kefraya in Idlib province, that are also besieged by the opposition. The divided city of Aleppo may be next. Indeed, between 400,000 (the UN’s figure) and 600,000 people (the Syrian American Medical Society’s estimate) are “under siege” or in “hard-to-reach” areas in Syria. The latter term is a euphemism that some argue is employed to avoid using the “S” word (“siege”), given its potential war crimes implications. A complicated agreement reached earlier this year is supposed to allow coordinated aid into both rebel- and state-controlled regions in need, but barriers remain.
Starvation of Civilians as a Method of Warfare
The deliberate starvation of civilians is not a new tactic of war, and parallels to the situation of Biafra come immediately to mind. Current international humanitarian law (IHL) — the law of armed conflict — makes clear that the deliberate starvation of the civilian population as a tactic of war is prohibited and a prosecutable war crime. This prohibition finds expression in Additional Protocol I (API) to the 1949 Geneva Conventions, which states that besieging forces may not starve civilians “as a method of warfare.” Similarly, it is prohibited to “attack, destroy, remove or render useless” any items necessary for civilians’ survival (e.g., food, land used to cultivate food, water, irrigation works, etc.), regardless of whether the objective is to starve the civilian population, to cause them to move, or some other motive.
This latter prohibition does not apply to resources used exclusively to sustain a an adversary’s armed forces or in direct support of military action. Such resources may be directly targeted because they constitute “military objectives.” Moreover, in instances of “imperative military necessity” to counter an invader, a state party may derogate from the above prohibition and resort to “scorched earth” tactics.