Starvation as a Weapon of War in Syria – Prosecution and an R2P Intervention

This commentary was originally posted by openDemocracy in conjunction with openSecurity.

After more than three years of civil war in Syria, allegations abound of starvation being used as a weapon of war. In October 2013 the media were the first to report on a so-called “Starvation until Submission Campaign”. In April 2014 Foreign Policy confirmed this claim in its exclusive entitled “New UN documents expose Assad’s starvation campaign in Syria”. Despite modest improvements in the delivery of food to areas controlled by non-state actors, internal United Nations (UN) reports found a “mass exodus” to government-controlled regions “… in part because” Syrians believe President Al-Assad to be “… the only reliable source of life-sustaining food”.

A confidential report by a team of lawyers and forensic scientists who took evidence from an anonymous witness called“Caesar”, contains photographs of starved bodies, concluding that there is sufficient evidence to prosecute for war crimes, crimes against humanity and torture. Amnesty International investigated Yarmouk, the Palestinian refugee camp in Damascus with the largest death toll due to starvation.

This brief commentary on deliberate starvation of civilians in Syria draws two parallels. First, a comparison with rape and sexual violence is germane because, despite the references to war crimes above, starvation cannot be prosecuted as a crime in its own right. Second, it is worth recounting the response by the international community to Somalia’s tragedy in 1993.

The recognition of rape and sexual violence as weapons of war started as a response to the events in the former Yugoslavia by UN Ambassador and former US Secretary of State Madeline Albright. Subsequently, the crimes were adopted in the statutes of the United Nations International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda in the 1990s.

Already In 1993, Theodor Meron, who later became the president of the ICTY, called for legal and political response to both rape and starvation. However, the crime of starvation had another fate than rape.

The Rome Statute establishing the International Criminal Court (ICC), lists starvation as a war crime in international conflicts, but not in intrastate conflicts. Without an explanation why starvation constitutes a crime “only” when two or more states are involved in an armed conflict, the drafters defied the authoritative consensussubmitted by the International Committee of the Red Cross (ICRC).

A pragmatic response to this dilemma for Syria is the prosecution of starvation under other headings. Examples are the war crime of intentionally directing attacks against civilians and, if the sieges and deprivation of food are intended to force civilians to move out of or into certain areas, ordering their displacement (Articles 8(2)(e)((i) and (viii), Rome Statute). Also, starvation can amount to a crime against humanity and genocide, or torture depending on the trying national jurisdiction (e.g. the Netherlands’international crimes division prosecutes torture).

However, this pragmatic response to starvation in Syria does not acknowledge the crime in its own right, and thereby does not agree with principles of legal certainty and equality. Like rape, starvation can be – and is – deployed as a method of warfare, also in non-international conflicts.

For the ICC to correct this anomaly, an amendment to the Rome Statute would be required. For an ad hocinternational criminal tribunal to try the crime, the drafters could adopt it in its statute. The latter scenario is more likely, because the ICC will most probably lack temporal jurisdiction for the Syrian case anyway, while an amendment process is cumbersome and lengthy.

It is therefore suggested that drafters of a statute for a hybrid tribunal in Syria adopt the crime, arguing that it follows the ICRC’s interpretation of international customary law and contributes to the development of international law, while advancing appropriate accountability and justice to the generations of victims of starvation. The Transitional Justice Roadmap suggests a hybrid tribunal, which combines both national and international law, rather than prosecutions before the ICC because of the added benefits of trials near the crime scene with independent intentional oversight. Its authors conclude “Syrians will need the international community, which failed them before, to rebuild their country and construct their future institutions in all conditions, and confidence building in it, which is a very important issue. But they should also realize that there are limits to the help that can be provided by the international community and that they must ultimately rely on themselves alone to build their democracy”.

The second parallel relevant for starvation in Syria is the authorization, in 1993, by the Security Council which permitted the international community to intervene under the UN Charter in an essentially intrastate conflict when starvation plagued Somalians (Resolution 733, 1992). This resolution brought about a revolutionary change, asMeronputs it, in our thinking about an interference with state sovereignty, which comes not only with rights but also duties to protect civilians from international crimes at least.

Since Somalia, the ‘Responsibility to Protect’ (R2P) doctrine has developed to allow the full ‘ladder’ of interventions, including diplomatic efforts, sanctions, embargoes and, as a last resort, a strategy of military intervention authorized by the Security Council. TheWorld Summit Outcome Document of 2005 explicitly identifies four crimes that require one or more of these interventions when a state fails to protect its populations, or even is the perpetrator thereof: “genocide, war crimes, ethnic cleansing and crimes against humanity”.

The example of Somalia serves as a precedent for an R2P intervention in the intrastate conflict in Syria, and is arguably a stronger case than Somalia´s famine which was caused by an interplay of natural factors and human behavior. After all, the evidence in Syria suggests a man-made disaster imposed by one group of persons on another, with resulting harm to civilians.

Therefore, it is proposed that a coalition of states seeks the backing of the Security Council to intervene under R2P in the Syrian situation, arguing the precedent of the earlier intervention in Somalia in 1993. Certainly, it will be difficult to achieve this aim for any group of countries, considering that at least three Resolutions on Syria have been vetoed. Nonetheless, an R2P intervention is recommended in order to achieve protection of civilians suffering from starvation, death and related harm in Syria.

To conclude, this commentary recommends two courses of action to address the crime of starvation purportedly occurring in Syria. The first recommendation is to ensure the prosecution of this international crime – either under its own heading, if adopted as a war crime in its own right or, pragmatically, under the other available headings of a crime against humanity or torture, for example. The second recommendation is an R2P intervention because the crime of starvation provides the very foundation to invoke the doctrine intended to protect civilians from the harm suffered. Alongside the general and specific deterrence that the aforementioned post-conflict justice measures can offer, an R2P intervention can ensure the more immediate protection of civilians which is so urgently required.

This commentary is the third in a series by The Hague Institute for Global Justice on deliberate starvation in Syria. It is preceded by Deliberate Starvation: Impact on Peace and Reconstruction in Syria by David Connollyand Agnese Macaluso, and Finding Cracks in Syria’s Deadly Politics to Deliver Aid by Eamon Aloyo and Mark Bailey.

*The author would like to thank Dr. David Connolly, Dr. Eamon Aloyo, Mr. Mark Bailey, and Ms. Agnese Macaluso for their helpful feedback on an earlier draft of this blog and extend thanks to Ms. Tessa Alleblas and Ms. Charlotte Divin for research support on an underlying concept note.

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