Starvation As a Weapon : Domestic Policies of Deliberate Starvation As a Means to an End under International Law [1 ed.] 9789004288577, 9789004288560

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Starvation as a Weapon – Domestic Policies of Deliberate Starvation as a Means to an End under International Law

International Humanitarian Law Series Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack

Editorial Advisory Board Professor Georges Abi-Saab – H.E. Judge George H. Aldrich Madame Justice Louise Arbour – Professor Ove Bring Professor John Dugard – Professor Dr. Horst Fischer – Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh – Professor Frits Kalshoven Professor Ruth Lapidoth – Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron – Captain J. Ashley Roach Professor Michael Schmitt – Professor Jiří Toman

volume 46 The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles published in this series are listed at brill.c0m/ihul

Starvation as a Weapon Domestic Policies of Deliberate Starvation as a Means to an End under International Law By

Simone Hutter

leiden | boston

This work was accepted by the Faculty of Law of the University of Zurich as a Doctoral Thesis in March 2014. Library of Congress Control Number: 2015942991.

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-28856-0 (hardback) isbn 978-90-04-28857-7 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhofff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

To my mother and my father

∵

Table of Contents Acknowledgements  xi List of Abbreviations  xiii Introduction  1 1 ‘Starvation as a Weapon’  5 2 Remarks concerning the Approach and the Structure of this Analysis  17

part A General Standards against Deliberate Starvation: The Right to Food and to Humanitarian Assistance Introduction  20 I.

II.

Relevant Normative Frameworks  29 1 Legal Establishment of the Right to Food  29 1.1 Right to Food: Distinction between Right to Adequate Food and Right to be Free from Hunger  29 1.2 Sources of International Human Rights Law  32 1.3 Related International and Regional Provisions and Instruments  41 2 Restrictions to the Right to Food  50 2.1 Filling the Ratifijication Gaps and Avoiding Conflicts of Diverging Legal Resources  50 2.2 Limitation Clauses  55 2.3 Emergency Exceptions  57 2.4 Restricted Legal Force  58 Prohibition of Deliberate Starvation  62 Deliberate Starvation Evoked by State Action  64 1.1 The Obligation to Respect  68 1.2 Special Case: Actively Undermining Humanitarian Assistance  76 2 Deliberate Starvation Evoked by Insufffijicient State Protection against Interference by Non-State Actors  91 2.1 The Obligation to Protect  96 1

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table of contents

2.2 Two Particularly Challenging Issues: Food Prices and Land Grabbing  108 Deliberate Starvation Evoked by Passive Conduct of a State in Vulnerable Situations  117 3.1 The Obligation to Fulfijil  120 3.2 Detailed Considerations  133

PART B Situations of Armed Conflict: International Humanitarian Law Introduction  162 I. 1 2 3 II.

Application of International Humanitarian Law  167 Non-International Armed Conflict  168 Use of Starvation as Use of Force?  173 Problematic Classifijication of Contemporary Armed Conflicts  176

Prohibition of Deliberate Starvation  181 Prohibition of Starvation of Civilians as a Method of Warfare  181 1.1 Historical Development and Customary Status of the Prohibition of Deliberate Starvation of Civilians  182 1.2 Starvation of Civilians  187 1.3 Starvation of Fighters  191 1.4 Further Implicit Provisions against Starvation  194 2 Destruction of Objects Indispensable to the Survival of the Civilian Population  196 2.1 Offfensive Destructive Tactics  198 2.2 Defensive Scorched Earth Tactics  218 3 Starvation of the Civilian Population by Food Blockade  223 3.1 Starvation in the Context of Blockade and Siege Warfare  226 3.2 Humanitarian Relief to Civilians  235 1

table of contents

PART C Conclusion I.

Two Frameworks as a Starting Position  247

II. 1 2

Harmonisation  251 Parallel Application  251 Synergies and Antagonisms  253 2.1 Synergies  254 2.2 Antagonisms  259 2.3 Evaluation  260

III. Food for Thought  263 Bibliography  270 Index  298

ix

Acknowledgements First and foremost, I would like to thank my supervisor Professor Oliver Diggelmann. From well before I ever contemplated a dissertation in international law, he has been a valued advisor and mentor and shared worthwhile insights. The greater part of this book originated during my employment as his research assistant at the Institute for International Public Law and Foreign Constitutional Law at the University of Zurich. I am also grateful to Dr. Gieri Bolliger who taught me that ethical values are worth fighting for and that injustices and inequalities must be addressed. Furthermore, I am indebted to Professor Christine Kaufmann, Professor Daniel Thürer and Dr. Nils Melzer for their helpful comments on the concept of this book. Professor Kaufmann’s thesis on hunger served as a constant source of inspiration during the process of writing this book. Several people have contributed considerably to the final version of this book. I want to thank Corinne Reber, Jonatan Niedrig, Nina Burri, Amélie Lepinard, Elena Consiglio, Annina Vogler, Lara Blecher, Nicole Urban and Edward Higbee for providing helpful comments on different sections of this book. Furthermore, a special thanks goes to Kali Tal for proof-reading my dissertation and for her astute insights. During the process of completing this book, I was fortunate enough to have the opportunity of spending one and a half years in London: In 2012 and 2013, I was given the chance to conduct research as a visiting research fellow at the British Institute of International and Comparative Law (BIICL) in London. The inspiring interaction with researchers from all over the world and the exchange of knowledge was highly beneficial for my work. In particular, I want to thank Professor Robert McCorquodale, the director of the BIICL, for giving me this opportunity and for sharing his valuable thoughts on my thesis. I am also grateful to my former colleagues at the Institutes in Zurich and London, with whom I had the benefit of sharing stimulating, encouraging and amusing dialogues. In particular, I want to thank Professor Daniel Möckli, Dr. Tilmann Altwicker, Daniel Stadelmann, Dr. Eva Lein, Dr. Andraž Zidar and Andrea Camargo. I also want to thank Kristin Hausler, Justine Stefanelli and Geoffrey Sautner for allowing me to stay in a wonderful office with a view over urban foxes playing in the backyard. These long periods of focus were only possible with the responsiveness and good will of Professor Diggelmann and the generous support of the Swiss National Science Foundation, to which I am truly grateful for allowing me to fully concentrate on my work.

xii

acknowledgements

I could not have succeeded without the invaluable support of my family and friends. Firstly, I want to thank my parents Jetti and Fredi Hutter, and my sister Andrea Hutter for their unconditional endorsement and encouragement. Furthermore, I want to thank my friends who provided me with mental and technical support, especially at the time the manuscript of this book was completed, in particular Matthias Brändli, Nina von Büren, Claudia Jucker, Yael-Sara Schmid and Felix Gonzalez. Last but not least I owe a great debt of gratitude to my boyfriend Benedikt Hess for his understanding during my long absences. Without his unceasing support the successful finalisation of this book would not have been possible. This work has been accepted by the Faculty of Law of the University of Zurich as a Doctoral Thesis in March 2014 and takes into account literature, judicature and legislation up to January 2014. For their support with realising the publication of the dissertation I thank Kristin Hausler and Anna Riddell of the BIICL, and Lindy Melman from Brill.

List of Abbreviations ACHR Add. African HR Commission AP(s) API

APII

art./arts. AU Banjul Charter BGE BIICL CCW

CDDH

CEDAW CETIM cf. CFS Committee on ESCR CPR CRPD CSIS

American Convention on Human Rights (1969) addendum, addenda African Commission of Human and Peoples’ Rights Protocol(s) Additional to the Geneva Conventions of 12 August 1949 (1977) Protocol Additional (I) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977) Protocol Additional (II) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977) article(s) African Union African Charter on Human and Peoples’ Rights (1981) Bundesgerichtsentscheid (Ruling of the Federal Supreme Court of Switzerland) British Institute of International and Comparative Law Convention on Certain Conventional Weapons (full title: Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects) (1980) Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed, Geneva, 1974-1977 Convention on the Elimination of all Forms of Discrimination against Women (1979) Centre Europe – Tiers Monde confer Committee on World Food Security Committee on Economic, Social and Cultural Rights Civil and Political Right(s) Convention on the Rights of Persons with Disabilities (2006) Center for Strategic and International Studies

xiv CUP DRK ead. ECHR ECOSOC ECOWAS ECtHR ed./eds. EJIL ESCR FAO FAO Voluntary Guidelines f./ff. FDFA FEWS NET FN GA GATT GC(s) GCI

GCII

GCIII GCIV GDP General Comment No. 12 Genocide Convention GIEWS

list of abbreviations

Cambridge University Press Democratic People’s Republic of Korea eadem (the same) European Convention on Human Rights and Fundamental Freedoms (1950) United Nations Economic and Social Council Economic Community of West African States European Court of Human Rights Editor(s) European Journal of International Law Economic, Social and Cultural Right(s) Food and Agriculture Organization of the United Nations FAO Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security following Swiss Federal Department of Foreign Affairs Famine Early Warning Systems Network footnote United Nations General Assembly General Agreement on Tariffs and Trade Geneva Convention(s) (1949) First Geneva Convention, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) Second Geneva Convention, for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) Third Geneva Convention, relative to the Treatment of Prisoners of War (1949) Fourth Convention (relative to the Protection of Civilian Persons in Time of War) (1949) Gross Domestic Product Committee on ESCR, E/C.12/1999/5, 12 May 1999 Convention for the Prevention and Punishment of the Crime of Genocide (1948) Global information and early warning system on food and agriculture

list of abbreviations

GSF Hague Convention IV Hague Regulations HRC HR Committee HRL IAC(s) IASC IASC Guidelines

ibid. ICC ICCPR ICESCR ICJ ICRC ICTR ICTY id. IDI IDPs IDS i.e. IFAD IFPRI IFRC IHL IIHL

xv

Global Strategic Framework for Food Security and Nutrition Convention (IV) Respecting the Rules of War on Land (1907) Regulations concerning the Laws and Customs of War on Land (annexed to the Hague Convention IV) (1907) United Nations Human Rights Council United Nations Human Rights Committee Human Rights Law International Armed Conflict(s) Inter-Agency Standing Committee Operational Guidelines on the Protection of Persons in Natural Disasters by the Inter-Agency Standing Committee (IASC) ibidem (at the same place) International Criminal Court International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia idem (the same) Institut de Droit International (Institute of International Law) Internally Displaced Persons Institute of Development Studies id est (that is) International Fund for Agricultural Development International Food Policy Research Institute International Federation of Red Cross and Red Crescent Societies International Humanitarian Law International Institute of Humanitarian Law (San Remo)

x vi IIHL-Principles

ILA ILA-Report on Use of Force 2010

ILC ILO IPC IRIN

IRRC London Declaration LSE MDG(s) MPEPIL NGO(s) NIAC(s) No., Nos. Nuremberg Principles NZZ OAS OAU OCHA ODI OHCHR O.R.

OUP p./pp.

list of abbreviations

Guiding Principles on the Right to Humanitarian Assistance by the Council of the International Institute of Humanitarian Law (IIHL) International Law Association Final Report on the Meaning of Armed Conflict in International Law, International Law Association (ILA), Committee on the Use of Force, The Hague Conference (2010) International Law Commission International Labour Organization Integrated Food Security Phase Classification Humanitarian News and Analysis Service by the United Nations Office for the Coordination of Humanitarian Affairs International Review of the Red Cross London Declaration concerning the Laws of Naval War (1909) London School of Economics and Political Science Millennium Development Goal(s) Max Planck Encyclopedia of Public International Law Non-Governmental Organisation(s) Non-International Armed Conflict(s) number(s) Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950) Neue Zürcher Zeitung Organization of American States Organisation of African Unity United Nations Office for the Coordination of Humanitarian Affairs Overseas Development Institute Office of the United Nations High Commissioner for Human Rights Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974-1977 Oxford University Press page(s)

list of abbreviations

para./paras. Protocol of San Salvador Res. Rome Statute SC SDC SERAP SPDC subpara. UDD UDHR UK UN UN Charter UN Darfur Commission UN Doc. UNDP UNEP UNESCO UNHCR UNISDR UNU UPR US(A) v. VCLT Vol. WFP WFS WHES WHO

x vii

paragraph(s) Additional Protocol to the American Convention on Human Rights in the Area of ESCR (1988) Resolution Rome Statute of the International Criminal Court (1998) United Nations Security Council Swiss Agency for Development and Cooperation Socio-Economic Rights and Accountability Project Shell Petroleum Development Company of Nigeria Limited subparagraph(s) Union of Forces for Democracy and Development Universal Declaration of Human Rights (1948) United Kingdom of Great Britain and Northern Ireland United Nations Charter of the United Nations (1945) International Commission of Inquiry on Darfur to the UN Secretary-General United Nations Document Number according to the UN’s Official Document System United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific, and Cultural Organization Office of the United Nations High Commissioner for Refugees United Nations International Strategy for Disaster Reduction United Nations University Universal Periodic Review United States (of America) versus Vienna Convention on the Law of the Treaties (1969) Volume(s) United Nations World Food Programme World Food Summit World Hunger Education Service World Health Organization

x viii

note on spelling / internet recources

Note on Spelling: Throughout this analysis, British English spelling is used, except in direct quotes or when the names of organisations or conventions are referenced; in those cases, the original spelling is maintained.

Internet Resources All the internet resources indicated within this analysis were accessed in January 2014.

Introduction Death by famine lacks drama. Bloody death, the death of many by slaughter as in riots or bombings in itself blood-bestirring; it excites you, prints indelible images on the mind. But death by famine, a vast slow dispirited noiseless apathy, offers none of that. Horrid though it may be to say, multitudinous death from this cause looked at merely optically, regarded without emotion as a spectacle, is until the crows get at it, the rats and kites and dogs and vultures very dull.1 In the Bengal famine of 1943, at least 1.5 million Indians starved to death, their fate summed up in the excerpt above.2 Today, photos of parched earth and dead fields are omnipresent in the global press, like the photos of starving children and adults, whose empty hands often reach out to us from shiny magazines or TV screens. That famines occur in developing countries is a given, and we often blame them on insufficient resources and poverty, or on environmental disasters like floods and droughts. These images of starvation may sadden us, but they rarely make us indignant. We do not recognise them for what they often are: a silent form of violence. The media’s fondness for images of cracked earth and withered crops gives us the impression that famine is caused by forces beyond human control. In reality, however, famines are often strategic, deliberately engineered by governments or their opponents in a calculated effort to achieve their political ends. This is not a new phenomenon. The ancient Greeks and Romans used food as an instrument to exert political pressure; they used starvation to force their enemies to surrender. In 405 BC, for example, the Spartan fleet starved Athens into submission.3 During the Third Punic War (149–146 BC) Carthage was besieged and deliberately destroyed by the Romans, leading to widespread starvation. Though it is unlikely fields were ever sown with salt, the symbolism of the sowing, rendering fields useless to sustain the crops upon which humans depend for life, still resonates today.4 When humanitarian aid was blocked in Somalia by the Al-Shabaab rebels, or the fields and forests of certain ethnic groups were targeted in Darfur, the 1 2 3 4

Stephens, p. 184. Stephens was chief editor of ‘The Statesman’ newspaper of Calcutta, and publicised the ongoing famine in Bengal, that has been censored in the Bengali press. See Hamilton, p. 298. Ridley, pp. 140-146.

2

introduction

decision to deprive the population of food was political.5 In the smouldering conflict in Syria, government forces and rebels have each sought to starve the other out. In the beleaguered Syrian city Homs, the biggest problem that civilians faced was hunger.6 But starvation is not just used as a military weapon; it is often deployed for political or economic purposes. In 2002, the president of Zimbabwe implemented a land reform that returned white-owned land to black Zimbabweans. This mass eviction, conducted without appropriate compensation, resulted in mass starvation.7 In this case, the Zimbabwean government not only deprived people of their livelihoods, but also restricted international food aid, allegedly wielding food supplies as a political weapon against opposition supporters.8 A close look at modern famine shows that, in many cases, food scarcity is not the product of coincidence. Instead, we see that many famines are side effects, or the result of a deliberate strategy. There are some who argue persuasively that all famines in the 20th century were resulted from, or were exacerbated by political manoeuvring. War and repressive government policies can play a significant role in famines even when drought or flood are proximate causes.9 The continual nature of deliberately inflicted famines is deeply disturbing, especially since the 2013 Global Hunger Index indicates that, across the globe, hunger has decreased by one-third since 1990.10 In a world where 5

6 7 8 9

10

Report of the Monitoring Group on Somalia and Eritrea pursuant to UN Security Council (SC) Resolution (Res.) 1916 (2010), 18 July 2011, UN Doc. S/2011/433, paras. 204ff.; Report of the ‘International Commission of Inquiry on Darfur to the UN SecretaryGeneral’ (hereafter: UN Darfur Commission), 25 January 2005, p. 83, para. 315. Cumming-Bruce (referring in his New York Times article on the Syrian peace talks to this online video: YouTube, www.youtube.com/watch?v=N-zO76UT8K8). European Parliament Resolution on Zimbabwe, 5 September 2002, Official Journal of the European Union, C 272 E/489, para. B. Ibid., para. 1; Narula, p. 709. See, inter alia, Devereux, Famine in the Twentieth Century, p. 23. He provides an overview of 20th century famines and their causal triggers, pp. 6ff. De Waal gives many examples of deliberately caused famines on the African continent (ibid.). Marcus differentiates four degrees of government conduct related to famine and provides an indepth analysis of each of these categories (Marcus, with the classification on pp. 246247). The Global Hunger Index is calculated by the International Food Policy Research Institute (IFPRI), Concern Worldwide and Welt Hunger Hilfe. For details on the 2013 Global Hunger Index, see: IFPRI Issue Brief, No. 79, October 2013. Cf. also IRIN (Humanitarian News and Analysis by the UN Office for the Coordination of Humanitarian Affairs), News Report of 16 October 2013, ‘Global hunger falling, index shows’ (available at www. irinnews.org/report/98945/global-hunger-falling-index-shows).

introduction

3

munitions are expensive, famine is a low-cost method of political coercion and of waging war. It is a readily available weapon even in the least developed nations.11 Politicians and military leaders know how to leverage access to food, and can use it to their own benefit. It is an efficient instrument when used to exert pressure and power, in times of war and peace.12 This analysis considers, within the framework of international law, the legality of using deliberate starvation as a means of achieving political goals. My consideration is limited to instances in which deliberate starvation is deployed domestically, i.e. carried out within the state’s own national territory. First, I outline the legal framework within which starvation can be assessed, and then I describe a variety of exemplary starvation scenarios. Each scenario is chosen to illustrate infringements on existing international law. It is not my goal to investigate these famines and empirically determine whether they were wilfully caused, since these observations have been made at length elsewhere.13 Instead, I consider the legal aspects of deliberate starvation that these scenarios raise. Domestic starvation policies are often poorly reported and deliberately concealed by the perpetrators. In countries where malnutrition is already widespread, emerging famines often go unnoticed by the international community.14 Famines are also highly divisive; few affect more that 5-10% of the overall population, so they may be invisible within a state. Famines may even be created in states where food is abundant.15 Lack of transparency often makes it difficult or impossible to scrutinise the domestic policy behind prevailing food scarcity; for example, they may not be detectible through the media blockade erected by a totalitarian regime. Many scholars have attempted to tackle ‘the social evil that famine represents’.16 Nobel Prize-winning economist Amartya Sen has taken an economic 11 12 13

14

15 16

Marcus, pp. 251-252. Wallensteen evaluated scarcity as a fundamental requirement, before goods could be wielded as political tools (ibid., p. 147). Devereux provides a useful overview of the different theories of famine causation. According to him, each theory correlates with the academic biases of their proponents: Devereux, Famine in the Twentieth Century, pp. 15-23. Most recent estimates indicate that 12.5 percent of the world’s population (868 million people) are undernourished, according to their caloric intake (FAO, The State of Food and Agriculture 2013, Rome: FAO 2013, available at: www.fao.org/docrep/018/i3300e/ i3300e.pdf, p. ix of the executive summary). Sen, Development as Freedom, p. 168. Also, OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, p. 4. Provost, p. 589.

4

introduction

approach.17 Former Special Rapporteur on the Right to Food Jean Ziegler has offered socio-political critiques,18 and philosopher Thomas Pogge has written ethical studies on hunger.19 I do not attempt to compete with them though I do tap their work. Instead, I want to draw attention to the often ignored practice of deliberate starvation, to understand it through the lens of legal science and to offer an analysis I trust will be useful for limiting this practice in the long run. I intend to shed light on the practice of deliberate starvation because it is an under-discussed subcategory of hunger and famines. Though many legal scholars have examined the starvation practices of states, most of them have scrutinised them in terms of the general right to food,20 or considered them in the context of a general discussion of economic, social and cultural rights.21 There are also comprehensive examinations that cover all legal aspects of hunger, but some of them originated decades ago.22 Scholars have specifically addressed the issue of deliberate starvation in relation to international criminal law, but have not often focused on domestic policies.23 Most of the publications that examine deliberate starvation in armed conflicts exclude or only insufficiently cover internal conflicts.24 I fill this gap in the literature by addressing my book to domestic policies of deliberate starvation, and updating the existing literature since much has changed in the quickly developing area of food security. The situations I have chosen to examine all fulfil cumulative elements that I outline in the next chapter (1). I begin by defining the terminology I use in

17 18

19 20

21 22 23 24

See, inter alia, Sen, Poverty and Famines. Further details and publications are listed at http://scholar.harvard.edu/sen. Jean Ziegler was Special Rapporteur on the Right to Food from 2000-2008. His most recent book is Jean Ziegler, Destruction massive: Géopolitique de la faim (see ibid.). For a list of his publications and the reports he presented as UN Special Rapporteur on the Right to Food, consult his webpage: www.righttofood.org. See, inter alia, Pogge, World Poverty. See, pars pro toto, De Schutter/Cordes; Narula, pp. 691-800; Alston/Tomasevski; Eide, Strategies for the Realization of the Right to Food; Golay, The Global Food Crisis; Kälin/ Künzli. See, pars pro toto, McCorquodale/Baderin; Sepulveda, Beetham, pp. 215ff. See, inter alia, Kaufmann’s seminal study, completed in 1990 (Kaufmann, Hunger als Rechtsproblem). De Waal; Marcus, pp. 245-281. See, for instance, Allen Ch.; Macalister-Smith, Protection of the Civilian Population, pp. 440-460; Thomas, pp. 108–118; Provost, pp. 577-639.

introduction

5

my analysis, and describe its scope in closer detail. Then I explain my approach and the way I have structured my analysis (2).

1

‘Starvation as a Weapon’

The title of this book, ‘Starvation as a Weapon’, describes situations in which food is employed as an instrument of political pressure: Starvation can be used deliberately as a means to an end. But the term ‘starvation’ is ambiguous, and there are many descriptions of ‘famine’. Thus, it is essential to provide the reader with clear definitions of these phenomena. If a comprehensive examination of the issues raised by starvation and famine is to be conducted, the scope of this analysis must be developed from a protection perspective. It must be detached from – but made with reference to – the specified concepts in international criminal law, international humanitarian law (IHL) or human rights law (HRL). Therefore, I have included definitions that determine the scope of this analysis below.25

Starvation Starvation as Deprivation of Food and Food-Related Items ‘Starvation’ primarily describes suffering caused by insufficient food or water.26 The verb ‘to starve’ can be used in both transitive and intransitive cases. One person can starve another, or someone can starve.27 For the purpose of this analysis, I adopt the transitive meaning of starvation when I analyse state policies of starvation.28 Interpretations in international criminal law do not limit the term ‘starvation’ to restrictively mean killing by hunger, or depriving of, or keeping insufficiently supplied with food. In international criminal law, starvation extends to depriving people of objects indispensable to their survival, such as clothing, medical supplies and the tools needed to harvest

25 26

27 28

The following terms only help to define the exact object of the study and are not generally accepted definitions. Restricting the term starvation to ‘making people go without food, in particular causing their death from hunger’ is an out-dated practice (Sen, Development as Freedom, p. 170). De Waal, p. 9. This, however, does not exclude from this book intransitive use of ‘starvation’ to describe the result of policies. This usage will be obvious from its context.

6

introduction

and process food.29 Thus, starvation can also comprise insufficient supply or withholding of ‘some essential commodity or something necessary to live, including causing to die of cold’.30 My analysis takes a similarly broad approach, but confines cases of deprivation to situations in which there is insufficient food or water to sustain life or health. Herein, I focus solely on the deprivation of essential items for the provision, consumption or storage of food or water. These include the basic tools and facilities required to produce, harvest, process or stock foodstuffs, and to make potable water available for consumption. In this book, the terms ‘food shortage’ and ‘deprivation of food’ also describe deprivation of these essential items. Unless explicitly mentioned, the term ‘food’ also includes water.31 Commission as well as Omission Starvation primarily means the action of subjecting people to food shortage, i.e. it is generally carried out by commission.32 Active deprivation includes attacking, destroying, rendering useless (e.g. poisoning drinking water wells or laying mines on agricultural land), removing indispensable objects or impeding relief supplies. However, starvation does not only imply positive conduct, but can also be the result of an omission, such as the denial of humanitarian aid to people in dire need of food assistance. No Result of Human Sufffering Required Starvation is not limited to killing by hunger; it includes any deprivation or insufficient supply of food or water. But deprivation that does not create hunger or cause death by starvation may also fall within the scope of this analysis if the said deprivation obstructs the pursuit of sustainable livelihoods or accelerates the destitution of more vulnerable and less powerful groups in the community. Starvation is a complex socio-economic process. Mass death is not the only possible outcome of an acute food shortage: Fertility may decline, and starvation may cause economic destitution, community breakdown or distress migration.33 Hunger may not be the proximate cause of death; instead, people may die of epidemic diseases (such as cholera or diarrhoea) trig-

29 30 31 32 33

Triffterer, art. 8, paras. 219-220. Ibid., para. 220. There has recently been debate about an autonomous right to water (see below on pp. 4 ff.). Sandoz/Swinarski/Zimmermann, para. 4791. See also Devereux, Famine in the Twentieth Century, p. 4.

introduction

7

gered or aggravated by the lack or the poor quality of food.34 Mortality risk increases when large numbers of people are displaced: Displaced persons are exposed to hazardous environments and to new diseases, or lack shelter or safe water.35 In periods of widespread food scarcity, people scavenge for food and may consume inedible or toxic products. Such desperate actions may bring about a quicker death than hunger would have.36 Hunger, Undernourishment and Malnutrition The threats of hunger and insufficient food are joined by the threat of malnutrition.37 Whereas hunger or undernourishment refers to ‘an insufficient supply or, at worst, a complete lack of calories’,38 malnutrition refers to ‘the lack or shortage of micronutrients, chiefly vitamins […] and minerals’.39 The consequences of malnutrition are as grave as those of hunger.40 Ziegler points out that children who receive sufficient calories, but lack micronutrients in their first years will have increased risk of infections and disabilities throughout their lives.41 Pressure can also be exerted through this less apparent form of hunger (UNICEF calls it ‘hidden hunger’42). Even though purposive malnutri34 35 36 37 38

39

40 41

42

Webb/Thorne-Lyman, p. 5. Similarly Devereux, Famine in the Twentieth Century, p. 4. Devereux, Famine in the Twentieth Century, p. 5. Ibid., p. 7. The World Food Programme (WFP) provides and overview of these definitions in its hunger glossary, available online at www.wfp.org/hunger/glossary. Report of the former Special Rapporteur on the Right to Food, Jean Ziegler, to the GA, A/56/210, para. 6. According to the FAO, undernourishment or chronic hunger is ‘[t]he status of persons, whose food intake regularly provides less than their minimum energy requirements. The average minimum energy requirement per person is about 1800 kcal per day. The exact requirement is determined by a person’s age, body size, activity level and physiological conditions such as illness, infection, pregnancy and lactation’. (FAO Hunger Portal, Basic Definitions, at www.fao.org/hunger/en/). Report of the former Special Rapporteur on the Right to Food, Jean Ziegler, to the GA, A/56/210, para. 6. See also the definitions provided at Kaufmann, Hunger als Rechtsproblem, pp. LI-LIII. See, inter alia, Rivers, pp. 57-106. Report of the former Special Rapporteur on the Right to Food, Jean Ziegler, to the GA, A/56/210, para. 6. See also Whitaker, pp. 1585-1586. For a detailed analysis about childhood and maternal undernutrition, see the World Health Organization (WHO) Report by Fishman et al. For details on the importance of nutrition, see Webb/Thorne-Lyman; Blackburn/Siddiqi, pp. 319-328. See also the definition of malnutrition used by the WFP, FAQs, available at www.wfp.org/hunger/faqs. ‘Vitamin and Mineral Deficiency – A Global Progress Report’, Report by Micronutrient Initiative and UNICEF, 2004, (available at www.micronutrient.org/CMFiles/Pub-

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tion is very difficult to prove, the implications of nutritional deficiencies are serious. In addition to the physical affects of starvation, reducing the healthy workforce can diminish the economic resources of an afflicted community.43 Purposive malnutrition may be used to exert political power. The British, for instance, deliberately deprived Indians of salt through a prohibitive tax in the Bengal Presidency from 1765 to 1878 in British India.44 De facto, it is hard to distinguish these different forms of ‘lack of food’, and almost impossible to differentiate their deliberate employment in practice as a means to an end. Therefore, my use of the term ‘starvation’ includes all of the above-mentioned forms of nutritional deprivation.45 In practice, distinctions between hunger, undernourishment and malnutrition are unclear, and the modern umbrella term of ‘food insecurity’ also includes all three terms.46

43

44

45

46

Lib/VMd-GPR-English1KWW-3242008-4681.pdf), p. 30, describing the phenomenon of ‘hidden hunger’ as follows: ‘Silently, invisibly, micronutrient deficiencies trap people, communities and entire countries in a cycle of poor health, poor educability, poor productivity and consequent poverty, often without the victims ever knowing the cause’. The World Bank estimates the loss in economic productivity due to undernutrition and micronutrient deficiencies at more than 10% of lifetime earnings (World Bank, Repositioning Nutrition as Central to Development – A Strategy for Large-Scale Action, Washington, DC 2006, pp. 24-25 [available at http://siteresources.worldbank.org/NUTRITION/Resources/281846-1131636806329/NutritionStrategy.pdf]; see also FAO, The State of Food and Agriculture 2013, Rome: FAO 2013, pp. 4-5 [available at www.fao.org/ docrep/018/i3300e/i3300e.pdf]); Blackburn/Siddiqi, p. 320. The high Salt Tax continued up to the twentieth century: in 1930 Mahatma Gandhi initiated a ‘Salt March’ to focus attention on the high Salt Tax in India. For details see Moxham, pp. 2270-2274; Weber, pp. 46ff. Methodology for measuring food deprivation can be found at ‘FAO Methodology for the measurement of food deprivation. Updating the minimum dietary energy requirements’, Mimeo, FAO Statistics Division, Rome: FAO October 2008 (available at: www. fao.org/fileadmin/templates/ess/documents/food_security_statistics/metadata/undernourishment_methodology.pdf); or Naiken. Food insecurity exists ‘when people lack access to sufficient amounts of safe and nutritious food, and therefore are not consuming enough for an active and healthy life. This may be due to the unavailability of food, inadequate purchasing power, or inappropriate utilization at household level’ (FAO Hunger Portal, Basic Definitions, at www.fao. org/hunger/en/). See also the Global Strategic Framework for Food Security and Nutrition (GSF) that provides an overarching framework with practical guidance for both food security and nutrition strategies adopted by consensus during the 39th session of the Committee on World Food Security (CFS) in October 2012 (for details see the FAO Factsheet, ‘The Human Right to Adequate Food in the Global Strategic Framework for Food Security and Nutrition – A Global Consensus’, Rome: FAO 2013, available at www. fao.org/docrep/019/i3546e/i3546e.pdf).

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Distinction from the Term ‘Famine’ Withholding food for political purposes can cause food shortages and also cause famine. The definition of ‘famine’ is more extensive than starvation’s transitive meaning; it refers to ‘severe and prolonged hunger in a substantial proportion of the population of a region or country, resulting in widespread and acute malnutrition and death by starvation and disease’.47 Whereas ‘starvation’ transitively connotes going without (adequate) food, ‘famine’ describes ‘a particularly virulent manifestation of [starvation] causing widespread death’.48 According to the Integrated Food Security Phase Classification (IPC),49 famine (‘catastrophe’) is classified as the fifth and worst stage of food insecurity. This objective classification is based on three main criteria: severe lack of food access for large populations, acute malnutrition rates exceeding 30% of the population, and a crude death rate that exceeds two people per 10,000 population per day.50 Thus, ‘[f]amines imply starvation, but not vice versa’.51 But because this analysis focuses on widespread starvation, I often use the terms ‘famine’ and ‘starvation’ interchangeably. When I invoke the difference between the two, it is to refer to cases in which hunger does not necessarily result in death (starvation), or when acute hunger manifests in death (famine).

47

48 49

50

51

Definition by Encyclopædia Britannica, 2013. See also Devereux, Famine in the Twentieth Century, p. 4. For an analysis of the various different definitions used for the term ‘famine’ see Dando, Famine, pp. 139-148. Sen, Poverty and Famines, p. 40. The IPC system was created by the UN in 2005 to make it easier to allocate resources by objectively classifying need. It is based on information from surveys conducted by the UN and other agencies on the ground. IPC global partner agencies include CARE, FAO, Famine Early Warning Systems Network (FEWS NET), Save the Children, Oxfam, and WFP (see www.foodsec.org/web/tools/emergencies/integrated-food-security-phaseclassification-ipc/en/). For details, see Berhane; FEWS NET, IPC Acute Food Insecurity Reference Table for Household Groups, available at www.fews.net/sites/default/files/documents/reports/ EB_Transition_to_IPC_Acute_Scale_en_2011_05_04_EN.pdf. [Emphasis added] Sen, Poverty and Famines, p. 39. For Sen’s distinction between starvation and poverty see also ibid. p. 39.

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Attack Directed by the State against Its Own Population The Population The term ‘population’ is not narrowly construed; it extends beyond the concept of civilian status used in the field of IHL. The distinction between civilians and fighters is crucially important in the law of armed conflicts.52 However, starvation as a means to an end must be understood within the context of both war and peace. Thus, I broadly interpret population according to the concept used in public international law: ‘Population’ refers to the whole population in the territory of a state, over which the state exercises authority and may exert pressure.53 Even if a state temporarily loses effective exercise of national sovereignty over a part of its national territory, those within the occupied territory are still part of the state’s population. Under the principle of continuity and stability, temporary discontinuation of de facto control over national territory does not imply the loss of statehood.54 In times of political instability, relieving the state of its (human rights- and humanitarian) obligations to the population of a territory over which it has temporarily lost control would be dangerous, and would leave a precarious vacuum.55 Loss of de facto control over territory is only excluded from the scope of this analysis if a state permanently loses territorial control and the legal status of the affected territory changes. Persons who have the duty to maintain public order, and have the legitimate means to exercise force are normally excluded from this definition of population by virtue of their position.56 Use of the term ‘population’ further 52 53

54

55

56

Definitions of the terms ‘civilian’ and ‘fighters’ are provided in the IHL chapter (Part B of the book on pp. 180). In this context, see the legal definition of state territory and state authority provided in Crawford, Brownlie’s Principles of Public International Law, pp. 128-129. These elements originate from Jellinek’s theory of three elements of statehood (ibid.). During belligerent occupations, the occupier has duties to the occupied population, but the occupation does not affect the legal status of the territory in question (see art. 4 of the 1977 ‘Protocol Additional [I] to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts [Protocol I]’ [‘API’]). Even in an extreme case, when a state is, for all practical purposes, incapable of acting, this so called ‘failed state’ still has rights and obligations (see the detailed discussion in Thürer, pp. 9-47). See the very similar definition of the term ‘civilian population’ used in connection with crimes against humanity (Prosecutor v. Kayishema and Ruzindana, Trial Chamber Judgment, ICTR-95-1-T, 21 May 1999, para. 127).

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indicates that the focus is not on individual persons, but on collective suffering from hunger; this analysis examines the phenomenon of mass starvation. Only populations threatened with widespread 57 starvation fall within the scope of this analysis. The entire population need not be threatened by famine, selective starvation is also included if many people are affected. In fact, targeting the population as a whole is rarely done in practice; offences against certain parts or groups of the population are far more common.58 Focus on Internal Situations The criteria of a state’s ‘own’ population excludes starvation that is used as a weapon against the population of a foreign state. I examine cases in which the state starves populations on its own territory. The central criterion is not the nationality, but the residency of individuals who live within the territory of a state. The presence of foreign nationals within this territory does not change the character of the population.59 In terms of IHL, the term ‘own’ does not imply that the starved population belongs ‘to their own camp’. The targeted population may be hostile (rebel groups etc.). States may starve their internal opponents, or may starve their own population as a tactic in an armed conflict. For example, a state may deliberately devastate its own territory to defend against a hostile party (socalled scorched earth tactics). Nor does the term ‘own’ exclude the possibility of an international armed conflict. As the IHL chapter B describes, a defensive scorched earth tactic may be applied against a state’s own population in international and non-international conflicts. 57

58

59

In line with the definition used by the ICTY with regard to crimes against humanity, the term ‘widespread’ refers to the large-scale nature of the attack and the number of victims (see Prosecutor v. Blaškić, Appeal Chamber Judgment, IT-95-14-A, 29 July 2004, para. 101). For a concrete definition, see ICTR Trial Chamber Judgment, Akayesu, ICTR96-4-T, 2 September 1998, para. 580: ‘The concept of widespread may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.’ Further details are provided in Darcy/ Powderly, p. 88; Byron, p. 192. Think for example about selective starvation against the opposition or other unwelcomed groups (as in the example of distinctive attacks against white farmers in Zimbabwe described below on p. 43). See the similar concept used in IHL as regards the definition of the civilian population: the ICTR held that ‘[w]here there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character’ (Akayesu, Case No. ICTR-96-4-T, Trial Chamber Decision of 2 September 1998, para. 582). See also Bothe/Partsch/Solf, p. 296.

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Lack of Physical Custody To fall within the scope of this book, targeted persons must not be in the physical custody of those who are starving them. People in prisons or detention camps are excluded from this analysis. Detained persons enjoy an exceptional position and are subject to special treatment. It is beyond the scope of this analysis to examine this particular regulatory regime, which occurs within a special relationship of dependency: The detainee always depends on the state to bring him food and water. Instead, this analysis focuses on people not in physical custody, a situation that raises more challenging legal problems.

Attributability to a State Focus on State-Sponsored Starvation International law only considers the entities subject to its rule. Entities subject to international law are primarily states,60 but may under certain circumstances also include non-state actors to the extent that international law regulates, prohibits, or penalises their conduct. This analysis focuses only on ‘state-sponsored’ starvation.61 Attribution of Conduct to the State In concrete terms, deliberate deprivation of objects indispensable to the survival of the population fall within the scope of this analysis only when they are legally attributable to states. Acts or omissions can be legally attributed to a state in accordance with the rules of international law governing the responsibility of states.62 This is the case where the relevant acts or omissions 60 61

62

For a detailed account of the legal criteria of statehood see Crawford, Brownlie’s Principles of Public International Law, pp. 128-136. A discussion of private conduct that causes starvation would also be interesting, but the scope of the present analysis is already broad, and so it was not possible to include this topic. The most significant source are the Draft Articles on State Responsibility by the International Law Commission (ILC) (hereafter: ‘ILC-Articles’), as adopted by the ILC at its 53rd session on 9 August 2001, and submitted to the GA as a part of the Commission’s report covering the work of that session (A/56/10). The relevant articles referred to below are customary international law (McCorquodale, Corporate Social Responsibility, p. 388). The report, which also contains commentaries on the ILC-Articles, appeared in the Yearbook of the ILC, 2001, Vol. II, Part Two, as corrected; available at http://legal. un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

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are performed by a state organ63 or by persons or entities otherwise empowered by domestic law to exercise elements of governmental authority,64 provided that the organ, person or entity was acting in that capacity at the time (de jure state agency).65 The state may even be responsible if such de jure state agents have been acting ultra vires, engaging in conduct clearly in excess of authority or contrary to instructions, as long as the agents used their official position to enable them to engage in such conduct.66 There are also situations in which the conduct of private individuals or groups is attributable to the state, namely, if they were acting on the instructions of, or under the direction or control67 of that state while so conducting themselves (so-called de facto state agency).68 Conduct of Non-State Actors Outside the exceptional circumstances described above, a state is not generally responsible for the acts of mobs, corporations or private persons. For the purpose of this analysis, private conduct that cannot be imputed to a state is called conduct of ‘non-state actors’.69 It is important to note that states may both breach their obligations under international law, where such abuse can be directly attributed to them, and also where they fail to take appropriate steps to prevent abuse by private actors.70 Conduct of non-state actors not 63 64 65 66 67

68

69 70

Legislative, executive and judicial organs come into question, as well as organs of other kinds (art. 4 of ILC-Articles). Art. 5 of ILC-Articles. See Aust, Handbook of International Law, p. 379; Crawford, The International Law Commissions Articles on State Responsibility, pp. 94ff. Art. 7 of ILC-Articles. See Crawford/Olleson, p. 453; Crawford, The International Law Commissions Articles on State Responsibility, pp. 106ff. In regard to the degree of control which the state must exercise if conduct is to be attributed to it, see the International Court of Justice (ICJ) in its Nicaragua-case (Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. United States of America (USA)], Merits, Judgment, ICJ Reports 1986, para. 115). Art. 8 of ILC-Articles. For details, see Aust, Handbook of International Law, p. 379; Crawford/Olleson, p. 454; Crawford, The International Law Commissions Articles on State Responsibility, pp. 110ff.; De Schutter, International Human Rights Law, pp. 367ff. See also arts. 9-11 of ILC-Articles. Useful remarks on the important distinction between the terms ‘de facto agency’ and ‘indirect use of force’ are made in Melzer, Targeted Killing, pp. 73-74. The term ‘non-state actor’ thus refers to any individual or entity whose conduct is not attributable to states according to international law. For a discussion of the human rights due diligence of states, see De Schutter/Ramasastry/Taylor/Thompson. See also the Guiding Principles on Business and Human Rights:

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attributable to a state per se is therefore included in the present analysis if the state is liable for violating its duty to protect individuals from abusive private conduct. Famine crimes that are neither prohibited nor otherwise regulated under international law, as when private individuals deprive people of food for reasons unrelated to an armed conflict, and which are crimes only under domestic law, do not fall within the scope of this study.

With Intent to Starve the Population as a Means to an End Intent to Starve the Population The mens rea element of ‘intent’ requires that starvation be deliberately committed. The terms ‘intent’ and ‘deliberation’ are used differently in different jurisdictions and various fields of law. Generally, deliberate conduct goes beyond intentional conduct, and refers to an intent based on conscious choice (premeditation), rather than to voluntary acts driven by impulse or passion.71 This analysis ignores the differences between these concepts because it imposes the additional requirement that starvation be carried out as a means to an end. Even when following the widely held view that higher standards are placed on deliberate conduct, this prerequisite (of well-considered conduct that is neither sudden nor rash) is met by the specific intent to starve as a

71

Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/17/31, 21 March 2011, Annex, unanimously endorsed by the UN Human Rights Council (HRC) on 16 June 2011 (HRC, Seventeenth session, UN Doc. A/HRC/RES/17/4), hereafter: ‘Ruggie-Principles‘. See e.g. Supreme Court of California defining deliberate as ‘careful weighing of considerations in forming a course of action’ (Supreme Court of California, Madam Justice Caro Corrigan, People v. Harris, 185 P. 3d 727 [2008]) or the definition by the Chief Justice Lamer of Canada’s Supreme Court as ‘not impulsive, slow in deciding, cautious, implying that the accused must take time to weigh the advantages and disadvantages of his intended action’ (Chief Justice Lamer of Canada’s Supreme Court, R v. Nygaard, [1989], 2 S.C.R., 1074). A different terminology is used for example in Melzer; he describes the element of deliberation as requiring the achieved result be ‘the actual aim of the operation, as opposed to deprivations […] which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims’ (Melzer, Targeted Killing, p. 4).

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means to an end.72 In this analysis, I treat the terms ‘deliberate’ and ‘intentional’ as synonyms for the subjective requirement of intent.73 The element of intention thus characterises the starvation as deliberately provoked, increased or prolonged. It must be the result of a conscious and intentional action or omission rather than merely negligent, accidental or reckless behaviour. In concrete terms, a prerequisite of ‘deliberate’ starvation is that it is carried out with intent and knowledge.74 In line with the definitions used in International Criminal Law, a person has intent when he or she ‘means to engage in the conduct’ (intent in relation to conduct).75 The conduct must result from voluntary action that connotes some element of desire or willingness to perform the action.76 Alternatively, intent exists when a person or entity ‘means to cause that consequence or is aware that it will occur in the ordinary course of events’ (intent in relation to a consequence).77 The latter implies that an aim or objective is to cause starvation, and that, even when starvation results from another intention, the person or entity knows that starvation is a prerequisite or necessary side effect of the desired objective.78 ‘Knowledge’ means ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’.79 Specifijic Intent to Starve as a Means to an End Even when there is intent to starve a population, starvation must be intentionally used ‘as a means to an end’. This is what the phrase ‘starvation as a weapon’ describes. It indicates that starvation is used as a tool to achieve a political, military or economic goal. Goals would include gaining a military advantage (e.g., achieving speedier subjugation of enemy insurgents), annihilating or weakening the population (e.g., ethnically cleansing a region of a certain group), or simply forcing targeted people from an area.80 Deprivation 72 73 74 75 76 77 78 79 80

If the population is starved with intent and as a means to an end, it is both deliberate and premeditated. See also Triffterer, art. 8, para. 225, where these terms are used synonymously. See e.g. art. 30 Rome Statute of the International Criminal Court (‘Rome Statute’). The Rome Statute of 17 July 1998 entered into force on 1 July 2002 (U.N. Doc. A/CONF.183/9). Art. 30 (2) (a) Rome Statute. Byron, p. 6. Art. 30 (2) (b) Rome Statute. Byron, pp. 6-7. Art. 30 (3) Rome Statute. See Byron, pp. 7-8, criticising this wording as being already included in one of the definitions of intent in art. 30 (2) (b) Rome Statute. See, for instance, the eviction of Chinese farmers in order to make way for Japanese settlers in Manchuria in the 1930s (Collingham, pp. 7-8).

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of the population does not need to be the primary goal of the actor; it may even be an unwelcome, but inevitable side effect (e.g. in order to realise an ambitious building project or to introduce austerity measures). But starvation must intentionally be used as an instrument to apply political pressure to achieve the desired objective. The method, not the motive, is the key to the specific intent to use starvation ‘as a means to an end’. The specific intent must also be formed in advance of a premeditated and deliberate course of conduct, whether starvation is the actual aim or only a necessary side effect. Famines that result from inept government or indifference do not fall within the definition established by this analysis unless they are subsequently used as a political tool to achieve a specific goal. However, even accidental famine caused by state negligence can be used as a means to an end, when a government becomes aware of the problem and, instead of solving it, turns the famine to its own purpose. Practical Issues Two practical issues about the mens rea elements must be highlighted. First, the state’s responsibility stems from the intentions and actions of its political or military leadership. There is a methodological distinction between primary and secondary rules: Only internationally wrongful acts can be attributed to a state, not the mens rea elements.81 Unlike the conduct of deprivation (as described above), specific intent does not have to be attributed to a state. Second, proving the mens rea elements of specific intent is often difficult. This special intention may be inferred from the offender’s explicit statements, and also from the factual circumstances: Both the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) consider, in cases where direct evidence is absent, that intent may be inferred from relevant facts and circumstantial evidence.82 From the perspective of the victim of the abuse, it hardly matters what the perpetrator’s motivations were, but in terms of finding ways to address the problem, motivation is crucially important.83

81 82 83

Milanovic, p. 567. Mugwanya, pp. 134-135. Kinley, p. 155.

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Summarised Defijinition In summary, for the purposes of this analysis, the term ‘starvation as a weapon’ denotes: the starvation of a population that is not in the physical custody of those targeting it. Starvation must be carried out with intent and as a means to an end. Furthermore, the act or omission that causes starvation must be attributable to a state (in accordance with the rules of the responsibility of states for the conduct of their agent), and must take place inside the territory of the state concerned.

2

Remarks concerning the Approach and the Structure of this Analysis

I explore the relevant normative framework of international law that governs the subject matter defined above. I will show that the existing provisions do protect the population against deliberate starvation, and illustrate the point by applying these provisions to different scenarios. My focus is on HRL and IHL because they are the most relevant to the subject. I examine the use of starvation in armed conflicts, ‘as a weapon’, and explain how IHL regulates such practices. Since famine policies are carried out in peacetime too, I also examine HRL. The clash of deliberately inflicted famine with human rights is obvious. I base my analysis mainly on the right to food. Haugen aptly emphasises that there is no other human right that has been subject to as many intergovernmental processes of clarification as the right to food.84 Despite its general confirmation, this right is still violated in practice on a massive scale. The overwhelming wealth of material on, and number of interpretations of the right to food, make it more difficult, rather than easier, for affected individuals to understand their rights or concretely demand that states fulfil the corresponding obligations. This analysis also seeks to clarify this most complex issue and to deduce the state’s clear obligations in concrete situations. Several other branches of international law may have legal implications for food security,85 but it is not possible to cover all legal aspects of this is84

85

Haugen, p. 1182. Kälin and Künzli similarly observe ‘kaum mehr überblickbare[n] Aktivitäten der UNO-Organe’ in addition to the substantial involvement of numerous NGOs in this field (Kälin/Künzli, Part 1, II, para. 21). See the overview in Cotula/Vidar, p. 3.

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sue within a single analysis. I will thus only touch on international criminal law, international economic law and environmental law, without going into great detail. I will briefly address the issue of implementing and enforcing the elaborated standards. Some of these issues are covered by other scholars; some need to be further addressed in the future. Deliberate starvation could also have been examined in light of national legislation and jurisprudence. National standards are important, but insufficient to efficiently tackle domestic starvation policies by the government. States can rarely resolve these issues internally, and their policies cannot be considered in isolation: Famines within the national territory of a state can have implications for the international community. Hunger may trigger migration flows and instability. A threat to the food supply of one country is likely to lead to conflict with another.86 Even if it is carried out within the national territory of a state, deliberate starvation may constitute a threat to international peace and security.87 The most severe cases of deliberate intentional starvation policies may constitute genocide, crimes against humanity or war crimes and thus be ‘of concern to the international community as a whole’.88 There may be no more important struggle than the one against hunger and poverty.89 Food scarcity is directly linked to other global issues, including the degradation of the global environment and the growing scarcity of natural resources, including clean water and good soil. For all these reasons, addressing deliberate starvation policies by means of international law is a pressing undertaking. This analysis is divided into three main parts. I begin, in Part A, with an examination of deliberately produced food deprivation in light of HRL. In Part B, I address the particular situations of armed conflict and illuminate the standards of IHL. I end, in Part C, by describing the situations in which both HRL and IHL are applicable, and discuss the pertinent standards.

86 87 88

89

Wallensteen, p. 143. See, for instance, the SC Res. 1296 (2000), para. 5. Preamble to the Rome Statute. Cf. also ICJ, Barcelona Traction Case, ‘Barcelona Traction, Light and Power Company, Limited’, Judgment of 26 February 2007, ICJ Reports 1970, paras. 33-34. See, e.g. Millennium Development Goals (MDGs), Goal No. 1. See also Rio+20 Conference on Sustainable Development, and the UN System Task Team on the Post-2015 UN Development Agenda (www.un.org/en/ecosoc/about/mdg.shtml).

part A General Standards against Deliberate Starvation: The Right to Food and to Humanitarian Assistance

∵

Introduction Some of the worst human rights catastrophes of the twentieth century were famines created or manipulated by governments.1 Marcus points out that ‘famines often arise out of a host of rights violations committed by murderous governments bent on manipulating hunger to further their own purposes’.2 Though other human rights may be infringed by starvation, this chapter focuses primarily on the right to food and, secondarily, on the connections between the right to food and the right to life. Since it is impossible to consider all related human rights aspects in detail, the focus of this chapter is on strengthening the significance of the right to food in the legal practice. The right to food is firmly anchored in binding international HRL.3 Its origin lies far back in the history.4 The right to food was already protected rudimentarily in the 1216 Charter of the Forest, an equally important sister Charter to the 1215 Magna Carta.5 Van Bueren shows that the Charter of the Forest recognised rights to essentials of medieval living (such as a right to honey, grazing rights and rights to firewood) that ‘translate in the 21st century into

1 2 3

4 5

Marcus, p. 245. Ibid., p. 248. The Special Rapporteur on the Right to Food, Olivier De Schutter, noticed that ‘[t]he right to food has entered a new phase’ because the international community is no longer discussing the validity of a right to food as such, but focusing increasingly on its implementation (Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, para. 4). Mention deserves in this context the Optional Protocol to the ICESCR (adopted by the HRC [Res. 8/2 of 18 June 2008], and by the UN GA [Res. A/RES/63/117 of 10 December 2008]). Pars pro toto, an overview of the ‘history of hunger’ is provided by Kaufmann, Hunger als Rechtsproblem, pp. 3-53. This is apparent in the fact that the first scholarly edition of the Magna Carta was published by the jurist William Blackstone together with the Charter of the Forest (Blackstone). See e.g. van Bueren, Should we have an enforceable right to food?; Prest, pp. 164-165. The Magna Carta was granted by King John in 1215 on the battlefield at Runnymede and recognised the rights and privileges of the barons, church and freemen. This charter is widely considered to be the foundation of the English and US constitutional systems, representing the first time the power of the monarchy was restrained by law and popular resistance. For details, see McKechnie

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the right to adequate nutrition’.6 Despite this early recognition, the right to food was poorly developed in comparison with the freedoms and liberties set down in the Magna Carta. The right to food was enshrined in international treaty law some sixty years ago, has appeared in many international declarations and has been discussed at countless conferences. Bodies, agencies and programmes of the United Nations (UN) system have intensively concerned themselves with this matter. The main international actors promoting the right to food are the Food and Agriculture Organization of the United Nations (FAO), the Special Rapporteur on the Right to Food, the Office of the High Commissioner for Human Rights (OHCHR) and the Committee on Economic, Social and Cultural Rights (‘Committee on ESCR’). The Committee on ESCR is the UN body of independent experts that is entrusted with monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR)7 by its state parties.8 The contemporary weak acceptance of the right to food is a result of the enduring disagreement over the proper status of economic, social and cultural rights (ESCR) in general: At one extreme lies the view that these rights are superior to civil and political rights in terms of an appropriate value hierarchy and in chronological terms. Of what use is the right to free speech to those who are starving and illiterate? At the other extreme we find the view that economic and social rights do not constitute rights […] at all.9 Throughout their entire historical development, the primacy of civil and political rights (CPR) over ESCR has emerged and has seriously affected their

6

7

8

9

Van Bueren, Should we have an enforceable right to food?. For details on the British history of British Socio-Economic Rights, see van Bueren, Socio-Economic Rights, pp. 821-837. Adopted and opened for signature, ratification and accession by GA Res. 2200A (XXI) of 16 December 1966; entered into force on 3 January 1976, in accordance with art. 27 of 19th December 1966, UNTS Bd. 993, 3ff. The Committee was established under Res. 1985/17 of 28 May 1985 of the United Nations Economic and Social Council (ECOSOC) to carry out the monitoring functions assigned to the ECOSOC in Part IV of the ICESCR. Neither the Committee’s concluding observations on the submitted state reports nor its general comments are binding, but its interpretations of the right to food, particularly General Comment No. 12, play a crucial role in promoting this right (see also Mechlem, para. 33). Steiner/Alston/Goodman, p. 263.

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part a – gener al standards against deliber ate starvation

development.10 This preference is specifically reflected in the degree to which their violation is tolerated. The Committee on ESCR deplores the fact that the international community acquiesces in breaches of ESCR ‘which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action’.11 This tolerance is allowed by the requirement that ESCR be achieved only ‘progressively’ and ‘to the maximum of its available resources’: Art. 2 (1) ICESCR requires the state parties ‘to take steps’ to achieve the full realisation of the rights recognised in the ICESCR ‘progressively’ and ‘by all appropriate means’.12 This obligation is weak in comparison to art. 2 (1) of the International Covenant on Civil and Political Rights (ICCPR),13 which contains an immediate obligation ‘to respect and to ensure’.14 The open-endedness of progressive realisation renders these rights devoid of meaningful content. ESCR are therefore often declared as merely ‘programmatic’ rights, while CPR are directly enforceable ‘legal’ rights.15 The depreciation of ESCR continues in the political agenda.16 At the European level, a similar distinction between 10

11 12 13 14

15

16

It is interesting that the ICESCR is registered in the UN Treaty Series before the ICCPR and is on chronological grounds commonly referred to as ‘UN Pact I’ (see UN Treaty Series, Vol. 993, p. 3 [ICESCR], compared to Vol. 999, p. 171/Vol. 1057, p. 407 [ICCPR]). For a critical examination of the human rights hierarchy, see Narula, pp. 773-777. See also Steiner/Alston/Goodman, pp. 263-264, 271ff.; Pogge, World Poverty, pp. 64ff. UN Doc. E/1993/22, Annex III, para. 5. See Steiner/Alston/Goodman, p. 264; Marcus, p. 250. See Landau. Adopted and opened for signature, ratification and accession by GA Res. 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976. For in-depth information about the effect of this limitation on the justiciability of ESCR, see Committee on ESCR, General Comment No. 3, E/1991/23, 14 December 1990, para. 9; Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, paras. 32ff.; Schneider, pp. 1ff. Van Boven, pp. 50-51; Steiner/Alston/Goodman, p. 275. This is sharply criticised by Pogge, World Poverty, p. 67. An analysis of the words and phrases used in art. 2 (1) ICESCR is provided by Alston/Quinn, pp. 165ff. For instance, the present position of Switzerland is apparent in the Report of the Working Group on the Universal Periodic Review (UPR) on Switzerland, HRC, Twenty second session, Addendum, UN Doc. A/HRC/22/11/Add.1, 5 March 2013 (Switzerland’s explanatory notes vis-a-vis the rejected recommendation 123.3. [Ratification of the Optional Protocol to the ICESCR]: ‘The Federal Council, as well as the Federal Supreme Court considers the Covenant on Economic, Social and Cultural Rights, with some exceptions, to be programmatic in character. The recommendation to ratify the Option

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human rights of immediate application (European Convention on Human Rights and Fundamental Freedoms [ECHR]17) and human rights of a promotional nature (European Social Charter18) is made.19 Reasons for the Inferior Status of ESCR Why is there a persistent hierarchy that privileges CPR over ESCR? Violations of ESCR most frequently affect poor people who lack the resources to bring attention to their distress.20 The poor do not wield much power in society or politics and governments have little incentive to change conditions that are unsatisfactory to the poor. Even though positive obligations are – as we will see later – not exclusive to ESCR, this characteristic is often used to justify the primacy of CPR. Vasak divided human rights into three generations:21 CPR (first generation rights) are declared negative rights that require only abstention from certain types of behaviour and can be implemented immediately with limited state resources. ESCR (second generation rights) supposedly demand positive state action, gradually implemented at great cost to the state.22

17 18

19

20

21

22

Protocol to the Covenant can therefore not be accepted for the time being.’). See also ‘The Politics of Human Rights’, The Economist, 16 August 2001; Nolan A. Adopted in Rome on 4 November 1950 (last amended by the provisions of Protocol No. 14 [CETS No. 1949]), and entered into force on 1 June 2010. The European Social Charter of 1961 was revised on 3 May 1996, and entered into force on 1 July 1999 (CETS No. 163). Total number of ratifications: 33 states (status as of February 2014, found at http://conventions.coe.int/Treaty/Commun/ChercheSig. asp?NT=035&CM=&DF=&CL=ENG). While art. 1 ECHR demands the contracting parties ‘secure to everyone within their jurisdiction the rights and freedoms defined’, Part I of the European Social Charter requires the parties to only ‘accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised’. See van Boven, p. 51. Michael Windfuhr, Executive Director of FIAN (Food First Information and Action Network) International, Seminar on the Justiciability of ESCR, organised by the OHCHR, Geneva, 5-6 February 2001. See Skogly, pp. 73-74. Karel Vasak suggests a new classification of human rights: the first generation of CPR corresponds to freedom (liberté); the second generation of ESCR to equality (égalité); and the third generation, ‘solidarity rights’, to the principle of brotherhood ( fraternité). See Vasak, p. 29. Van Boven, p. 51; Narula, p. 774.

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But the dividing line between CPR and ESCR is not completely clear, nor was it always a given that human rights are divided into two separate sets.23 In earlier UN debates, it was generally recognised that ESCR were closely connected to CPR and should be covered by a single convention. This principle was even officially adopted by the UN General Assembly (GA) in its fifth session, where the enjoyment of CPR and that of ESCR were declared interdependent: ‘[…] when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration [of Human Rights] regards as the ideal of the free man’.24 The separation of ESCR and CPR into separate conventions was rationalised on the grounds that the two sets of rights needed to be implemented differently at the national level. There was also a political rationalisation: States might be more willing to ratify the ICCPR than the ICESCR. The intention was to allow states that might not be willing or able to implement ESCR to undertake binding obligations to implement CPR. However, practically all states have ratified both Covenants.25 Eide emphasises that during the post-war years an ideologically nurtured misperception arose; ESCR were viewed as ‘socialist’ in the sense attached to the command economy system, and seen as dangerous to CPR.26 The debate over the significance of ESCR still carries a lot of ideological baggage: After the rejection of communism and the widespread embrace of free-market economic solutions within the on-going process of globalisation, these rights remain ‘among the most controversial issues in the years ahead’.27

23

24

25

26 27

This is evident in the Universal Declaration of Human Rights (UDHR) of 1948 (see Joseph, p. 91; for background details see Glendon. See also GA Res. 421 (V), para. E, 4 December 1950; UN Doc. A/2929 (1955), Annotations on the text of the draft International Covenants on Human Rights, 1 July 1955, p. 4, para. 21. See also Konstantin Markin v. Russia, European Court of Human Rights (ECtHR), Application No. 30078/06, Judgment of 22 March 2012, Concurring Opinion of Judge Pinto de Albuquerque, pp. 51ff. GA Res. 421 (V), para. E, 4 December 1950. An outline of the history of the Draft Covenants is provided at UN Doc. A/2929 (1955), Annotations on the text of the Draft International Covenants on Human Rights, 1 July 1955, Chapter I. For further details see Szabo, p. 29; van Boven, p. 50. See also Konstantin Markin v. Russia, ECtHR, Application No. 30078/06, Judgment of 22 March 2012, Concurring Opinion of Judge Pinto de Albuquerque, pp. 51ff. Eide, Strategies for the Realization of the Right to Food, pp. 460-461; van Boven, p. 50. By January 2014, 167 states had ratified the ICCPR and 161 the ICESCR (see the UN Treaty Collection). Eide, Strategies for the Realization of the Right to Food, p. 461. Steiner/Alston/Goodman, p. 264.

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Commentators have increasingly argued that this distinction between ESCR and CPR is obsolete.28 There is a ‘growing understanding that the types of obligations derived from human rights do not differ according to the respective categorization of human rights’.29 Ethicist Shue argues that any human right – also the so-called liberty rights – requires three kinds of duties: the duty to avoid depriving; the duty to protect a person from deprivation; and, the duty to aid persons who are deprived.30 According to Shue, ‘it is impossible for any basic right – however “negative” it has come to seem – to be fully guaranteed unless all three types of duties are fulfilled’.31 Beetham similarly demonstrates that even according to classical liberal theory, governments are obliged to protect people from violations of their liberty and security, and this requires considerable government expenditure. To maintain their security, governments must establish expensive police forces, judicial systems and prisons and maintain the complex bureaucratic systems that support them.32 Sen does not think that political rights correlate negatively with ESCR. He demonstrates the general connection between democracy and the disappearance of famines.33 He shows that the connection between absence of famine and the presence of political freedom is not accidental, and has a historical association, and that CPR contribute positively to economic progress. This is particularly apparent in the example of food security: Democracy spreads the penalty of famine to ruling groups and the political leadership. Fear of electoral backlash generally offers sufficient incentive to prevent famine.34 According to Sen, active political opposition and the information provided by 28

29 30 31 32

33

34

See, inter alia, the German philosopher Pogge, in id., World Poverty, p. 70; Beetham, p. 225; Plant, pp. 22–46. The deliberations by Justice William Brennan are also interesting, in: Goldberg v. Kelly, 397 U.S. 254, 1970, Part I. Nowak, Introduction, para. 3. Shue, p. 52. Ibid., p. 53. Beetham, p. 225. For a critical engagement with the question of whether both the ICESCR and the ICCPR, or only the ICCPR contain specific obligations of conduct, see Seibert-Fohr, pp. 403-404. Sen, Freedoms and Needs, pp. 32-33. See Drèze, pp. 50-60; or Sen, Development as Freedom, pp. 146ff. (asking if poor people care about democracy and political rights [p. 151] and explaining the importance of democracy to the process of development [pp. 152ff.] and to famine prevention [pp. 178ff.]). A different opinion is held by Plümper and Neumayer, who argue that famine mortality in democracies is still possible, although less likely lower than in autocracies (Plümper/Neumayer, pp. 3ff.). For an in-depth examination of the connection between democracy and famine crises, see Rubin. Sen, Development as Freedom, p. 180; id., Freedoms and Needs, pp. 32-33. See also Devereux, Famine in the Twentieth Century, pp. 22-23.

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a free press constitute the best famine prevention system that a country can possess.35 The converse is also true: Promoting economic and social development improves implementation of human rights in general.36 Improvement of the standard of living also has a positive impact on economic growth in a country. The market economy flourishes on the foundations of social development.37 The World Bank and the International Monetary Fund both recognise that stronger fundamental social rights result in more stable economic growth.38 The World Bank revealed that undernutrition and micronutrient deficiencies decrease economic productivity more than 10% of lifetime earnings.39 There is high pay-off in investments that reduce micronutrient deficiencies. Failing to address malnutrition results in lost gross domestic product (GDP) and higher budget outlays, which undermines arguments that states lack resources to increase food security.40 Deliberate Starvation Practices and Human Rights Deliberately evoked starvation as a means to an end is within the human rights framework not explicitly addressed in the current binding instruments. Some non-binding human rights instruments do take into account the significance of food as a political tool: The Vienna Declaration on Human Rights, for example, ‘affirms that food should not be used as a tool for political pressure’.41 This was reiterated in the Rome Declaration on World Food 35 36

37

38

39

40 41

Sen, Freedoms and Needs, pp. 33-34. See, inter alia, Alston/Robinson, pp. 1-2; Kinley, pp. 93-104. Eide explains that neglect of ESCR causes violence and social conflicts and, therefore, also violations of CPR (Eide, Strategies for the Realization of the Right to Food, p. 462). The economists Barro and Sala-i-Martin demonstrate that countries with high life expectancy (reflected in nutrition, health care and literacy rates) tended to grow faster over four decades (Barro/Sala-i-Martin, p. 554). See also Sen, Development as Freedom, p. 259. See the Comprehensive Development Framework proposed by the World Bank in 1999 and, based on its principles, the Poverty Reduction Strategy Papers (available at www. imf.org/external/np/prsp/prsp.aspx). For details see Wolfensohn/Fischer. World Bank, Repositioning Nutrition as Central to Development – A Strategy for LargeScale Action, Washington, DC 2006, pp.  24-25 (available at http://siteresources.worldbank.org/NUTRITION/Resources/281846-1131636806329/NutritionStrategy.pdf); see also FAO, The State of Food and Agriculture 2013, Rome: FAO 2013, pp. 4-5 (available at www. fao.org/docrep/018/i3300e/i3300e.pdf). World Bank, Repositioning Nutrition as Central to Development – A Strategy for LargeScale Action, Washington, DC 2006, p. 26. See para. 31 of the Vienna Declaration and Programme of Action of 12 July 1993, as adopted by the World Conference on Human Rights on 25 June 1993, A/CONF.157/23, en-

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Security,42 ‘the International Alliance Against Hunger’ Declaration,43 and several resolutions of the GA44 and of the UN Human Rights Council (HRC).45 The ‘FAO Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security’ (‘FAO Voluntary Guidelines’) are also relevant.46 These state that ‘food should never be used as a means of political and economic pressure’.47 However, these instruments put less emphasis on national obligations to the local population than on international obligations of the states (in connection with the prohibition of food embargoes or other economic sanctions48) that undermine conditions for food production and access to food in other countries.49 This chapter demonstrates that deliberate starvation of a state’s own population is still implicitly prohibited under binding international and regional HRL. The prohibition is based on the protection of the right to food and its derived obligations. Without this inference, the establishment of the right to food would appear futile as deliberate starvation infringes the core of this right. From a human rights perspective, it does not matter what motivates an abuse. Nevertheless, in order to address the problem, it is necessary to determine if a state could not avoid a famine or if it intentionally induced food

42 43 44 45

46

47 48

49

dorsed by GA Res. 48/121, 20 December 1993, available at: www.unhchr.ch/huridocda/ huridoca.nsf/(Symbol)/A.CONF.157.23.En. Issued by the World Food Summit (WFS), 13-17 November 1996, preambular para. 7. The Rome Declaration was reaffirmed by the UN Millennium Summit in 2000. Declaration of the WFS: Five Years Later in 2002, preambular para. 4. E.g. Res. 65/220, U.N. Doc. A/RES/65/220, 5 April 2011, preambular para. 9. In particular, Res. 19/7 of 3 April 2012 (A/HRC/RES/19/7); Res. 16/27 of 13 April 2011 (A/ HRC/RES/16/27), preambular para. 11; and Res. 13/4 of 14 April 2010 (A/HRC/RES/13/4), preambular para. 10. The HRC replaced the former Commission on Human Rights in 2006. Earlier, the concern about food as an instrument for political pressure was addressed in many resolutions of the Commission on Human Rights, and last in preambular para. 10 of Res. 2005/18 of 14 April 2005 (E/CN.4/RES/2005/18). The FAO Voluntary Guidelines were adopted by the 127th session of the Council of the FAO, November 2004. The full text is available at www.fao.org/docrep/meeting/009/ y9825e/y9825e00.htm. Ibid., Guideline 16.1. Economic sanctions are generally understood as foreign policy enacted against another state, and are therefore not covered by this analysis. For details, see, for instance, Committee on ESCR, General Comment No. 8, The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, E/C.12/1997/8, 12 December 1997; Baldwin/Pape, pp. 189-198; Barber J., pp. 367-384; Segall. See also Committee on ESCR, General Comment No. 12, E/C.12/1999/5, 12 May 1999, para. 37.

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insecurity. Deliberate starvation abridges all other human rights. Without adequate food a person cannot enjoy and exercise any other human right: Chronically hungry and malnourished people cannot meaningfully enjoy their other inalienable rights.50 Part A of this book provides an overview of the various standards of international law and alternative instruments applicable to the right to adequate food (I), and clarifies the normative content of this fundamental right in cases of deliberately provoked internal hunger crisis (II). By their very nature, human rights entitle universal rights and freedoms to all human beings against states. However, in the context of this analysis it is more useful to take a stateoriented perspective and examine the obligations imposed on states by the right to food. For each right of an individual, there is a corresponding duty of the state to respect, protect and fulfil that right.51

50 51

Committee on ESCR, General Comment No. 12, para. 1. Cotula/Vidar, p. 3.

I.

Relevant Normative Frameworks

1

Legal Establishment of the Right to Food

This section first introduces the two basic approaches for the establishment of the right to food: the right to adequate food and the right to be free from hunger (1.1). Second, the different sources of international HRL with reference to the right to food are addressed (1.2). Third, further correlative international and regional human rights instruments are presented briefly (1.3). 1.1

Right to Food: Distinction between Right to Adequate Food and Right to be Free from Hunger The concept of a right to food is ambiguous and needs to be clarified. The distinct terms are frequently associated with different meanings. The UN Special Rapporteur on the Right to Food, De Schutter notes: [T]he right to food is not a right to a minimum ration of calories, proteins and other specific nutrients, or a right to be fed. It is about being guaranteed the right to feed oneself, which requires not only that food is available – that the ratio of production to the population is sufficient – but also that it is accessible – i.e., that each household either has the means to produce or buy its own food. However, when people are not able to feed themselves with their own means, for instance because of an armed conflict, natural disaster or because they are in detention, the state is under an obligation to provide food directly.1 Where are the right to adequate food and the right to be free from hunger situated within this framework? I use the ‘right to food’ as an umbrella term, which comprises the right to adequate food and the right to be free from hunger. This is the approach laid down in art. 11 ICESCR. The right to adequate food, as defined by the Committee on ESCR, is ‘realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement’.2 The adequacy requirement implies a certain standard of

1 2

Information page on the right to food by Special Rapporteur on the Right to Food, Olivier De Schutter, www.srfood.org/index.php/en/right-to-food, para. 2. Committee on ESCR, General Comment No. 12, para. 6.

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food and is closely linked to human dignity.3 Food should be quantitatively and qualitatively adequate and sufficient ‘corresponding to the cultural traditions of the people to which the consumer belongs’ and ensuring ‘a physical and mental, individual and collective, fulfilling and dignified life free of fear’.4 The core content of the right to adequate food refers to the availability of food in a quantity and quality sufficient to meet the dietary needs of individuals, and the sustainable economic and physical accessibility of such food.5 Availability implies ‘the possibilities either for feeding oneself directly from productive land or other natural resources, or for well-functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand’.6 Accessibility consists of two components: economic and physical accessibility. Economic accessibility implies that personal or household financial costs of acquiring sufficient food in kind, amount, and quality should not threaten or compromise attainment and satisfaction of other basic needs. Physical accessibility implies that everyone must have access to adequate food, including physically vulnerable individuals, such as infants, elderly people, disabled people or terminally ill.7 The right to be free from hunger does not go as far; it grants only the minimum nutritional intake necessary for bare survival, regardless of the adequacy standard.8 It connotes a ‘minimal standard’ and is directly linked to the right to life. It can be defined as the ‘right to have access to the minimum essential food which is sufficient […] to ensure everyone is free from hunger and physical deterioration that would lead to death’.9 Thus, the right to be free from hunger constitutes the minimum core content of the right to food.10 As Kälin and Künzli point out, the right to freedom from hunger constitutes the indispensable basis for the exercise of all other human rights and is the 3 4

5

6 7 8 9 10

Golay, The Right to Food and Access to Justice, p. 12. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, submitted in accordance with Commission on Human Rights Res. 2000/10, UN Doc. E/ CN.4/2001/53, para. 14. Committee on ESCR, General Comment No. 12, para. 8. For details about the development of this typology, see De Schutter, International Human Rights Law, pp. 253ff. (with a valuable overview on p. 257). Committee on ESCR, General Comment No. 12, para. 12. Ibid., para. 13. See also Golay, The Right to Food and Access to Justice, p. 13. Cotula/Vidar, p. 5; for details Kaufmann, Hunger als Rechtsproblem, pp. 62-63. Golay, The Right to Food and Access to Justice, p. 14. See Kaufmann, Hunger als Rechtsproblem, p. 62.

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only human right of the two UN Covenants on human rights referred to as ‘fundamental’.11 The term ‘hunger’ is an incisive perception and comprehensible all over the world, since every person has felt hunger. The ‘UN Millennium Project – Task Force on Hunger’ defines hunger as ‘the subjective feeling of discomfort that follows a period without eating’.12 Like any other human right, both the right to adequate food and the right to be free from hunger impose three different obligations on state parties, namely, the obligation to respect, to protect and to fulfil.13 This three-level typology of states’ duties was developed by Eide, the former UN Special Rapporteur on the Right to Food, in 198714 and has been widely used ever since. Human rights treaty bodies promote this approach.15 With respect to the right to adequate food, the Committee on ESCR puts these duties in concrete terms: The obligation to respect existing access to adequate food requires states parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the state to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means the state must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood […]. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their

11 12 13

14

15

Kälin/Künzli, Part 1, para. 3, referring to art. 11 (2) ICESCR. UN Millennium Project, Task Force on Hunger, 2005, available at www.unmillenniumproject.org/documents/Hunger-lowres-complete.pdf, pp. 19-20. For an in-depth analysis of these obligations, see the Report of the former Special Rapporteur on the Right to Food, Jean Ziegler, to the GA, A/56/210, paras. 26-36. See also, in detail, De Schutter, International Human Rights Law, pp. 242ff.; and Maastricht Guidelines on Violations of ESCR, E/C.12/2000/13, Maastricht, 22-26 January 1997, para. 6. UN ECOSOC, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Thirty-ninth session, The New International Economic Order and the Promotion of Human Rights, U.N. doc. E/CN.4/Sub.2/1987/23, 7 July 1987, paras. 169ff. See, e.g., Office of the High Commissioner for Human Rights, Fact Sheet No. 30: The United Nations Human Rights Treaty System, available at www.ohchr.org/Documents/ Publications/FactSheet30Rev1.pdf. Treaty bodies are expert committees created by many of the major human rights treaties and have authority to comment on both general and specific issues of state compliance. Among them are the ‘HR Committee’, the treaty body for the ICCPR, and the ‘Committee on ESCR’, the treaty body for the ICESCR.

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disposal, states have the obligations to fulfil (provide) that right directly.16 Each of the above commitments contains elements of obligation of conduct and obligation of result.17 The obligation of conduct requires a particular course of conduct to be adopted; the obligation of result requires a state to achieve, by means of its own choice, specific targets to satisfy a substantive standard.18 1.2 Sources of International Human Rights Law Article 25 (1) of the Universal Declaration of Human Rights (UDHR)19 entitles everyone to ‘the right to a standard of living adequate for the health and well-being of himself and of his family, including food [...]’. The UDHR is not a legally binding treaty, but it is considered part of an authoritative interpretation of arts. 55 and 56 of the UN Charter,20 which obligates the members of the UN to promote higher standards of living and solutions for international economic, social, health and related problems.21 The right to adequate food is affirmed by a range of human rights treaties that legally bind the ratifying states. First and foremost, the ICESCR most clearly pronounces the right to adequate food in its art. 11 (1). Art. 11 (2) ICESCR recognises the right of individuals to have enough food to meet minimal nutritional requirements, regardless of the adequate standard (right to free16 17

18

19

20 21

Committee on ESCR, General Comment No. 12, para. 15. See Committee on ESCR, General Comment No. 3, para. 1; Maastricht Guidelines on Violations of ESCR, E/C.12/2000/13, para. 7. An interesting approach is provided in the concurring opinion of Judge Pinto De Albuquerque, ECtHR Case of Konstantin Markin v. Russia, 22 March 2012, Application No. 30078/06, pp. 61-62, see, in particular, in FN 28. For further information regarding this terminology, see the Commentaries on arts. 20 and 21 of the out-dated ILC-Draft Articles on State Responsibility, provisionally adopted by the ILC on first reading at its 48th Session in 1996, ILC Report 1996 (available online at http://legal.un.org/ilc/guide/9_6.htm). Although these articles were deleted by drafting Committee of the ILC on second reading, this commentary is still useful to distinguish between these obligations. For further information, see Seibert-Fohr, p. 401. Adopted by the GA on 10 December 1948, Res. 217 (III). As Golay and Özden appositely noted, ‘the importance of the Universal Declaration of Human Rights lies in its being accepted today by all countries’ (Golay/Özden, p. 10). See also Allen Ch., p. 49. The UN Charter was signed in San Francisco on 26 June 1945, and came into force on 24 October 1945. Cotula/Vidar, p. 4; Kaufmann, Hunger als Rechtsproblem, pp. 57-58; Allen Ch., p. 49.

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dom from hunger).22 The broad right to adequate food, which protects vulnerable groups, is also enshrined in arts. 12 (2) and 14 (2) of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW),23 arts.  25 (f) and 28 (1) of the Convention on the Rights of Persons with Disabilities (CRPD),24 as well as arts. 24 (2) (c)25 and 27 of the Convention on the Rights of the Child.26 At a regional level, the right to adequate food is explicitly protected by art. 12 (1) of the Additional Protocol to the American Convention on Human Rights in the Area of ESCR (‘Protocol of San Salvador’),27 and on the African continent by art. 14 (2) (c) of the African Charter on the Rights and Welfare of the Child,28 22 23 24

25

26

27

28

Cotula/Vidar, p. 5; for details Kaufmann, Hunger als Rechtsproblem, pp. 62-63. The Convention was adopted by the GA on 18 December 1979 (Res. 34/180) and entered into force on 3 September 1981 (34 U.N. GAOR Supp. [No. 46] at 193, UN Doc. A/34/46). The CRPD of 13 December 2006 was adopted by the GA (A/RES/61/106) on 24 January 2007, and entered into force on 3 May 2008. Besides the right to adequate food (art. 28 [1]), art. 25 (f) obliges the state parties to ‘prevent discriminatory of […] food and fluids on the basis of disability’. Art. 24 (2) (c) expressly obligates all state parties to take all necessary measures to combat malnutrition of children. The same obligation was imposed on member states by the HR Committee, on the basis of art. 24 ICCPR (HR Committee, General Comment No. 17, 7 April 1989, para. 3). The Convention on the Rights of the Child was adopted and opened for signature, ratification and accession by GA Res. 44/25 of 20 November 1989. It entered into force on 2 September 1990. For details on children’s right to adequate food, see UN Committee on the Rights of the Child, General Comment No. 15, on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15, 17 April 2013 (particularly paras. 43-47). Protocol of San Salvador was adopted in San Salvador, El Salvador, on 17  November 1988, by the Organization of American States (OAS) (OAS Doc. OAS/Ser.L/V/I.4 rev. 13). Art.  12 (2) encloses a commitment of the ratifying countries to improve methods of food production, supply and distribution systems in order to promote the exercise of this right and eradicate malnutrition (Golay/Özden, p. 12, with a list of the ratifying countries in Annex 3). Adopted by the Organisation of African Unity (OAU) (OAU Doc. CAB/LEG/24.9/49 [1990], entered into force on 29 November 1999). In 2001, the OAU became the African Union (AU). Art. 14 (II) (c) contains the obligation of the state parties to ensure the provision of adequate nutrition and safe drinking water. The African Charter on the Rights and Welfare of the Child further requires that all ratifying countries take, in accordance with the means at their disposal, all appropriate measures to assist parents and ‘in case of need provide material assistance and support programmes particularly with regard to nutrition […]’ (art. 20 [2] [a]; see also Golay/Özden, p. 13, with a list of the ratifying countries in Annex 5).

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and art. 15 of the Protocol29 to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.30 Other regional human rights treaties do not recognise as wide a right to food as the ICESCR, but still guarantee certain aspects of it. By providing certain social rights, such as the right to a decent minimum standard of living, they help to protect entitlements to food.31 The European Social Charter, for example, does not recognise a distinctive right to food, but recognises the ‘right to social and medical assistance’, the ‘right of workers to a remuneration such as will give them and their families a decent standard of living’, and the right ‘to establish or maintain a system of social security’.32 The African Charter on Human and Peoples’ Rights (‘Banjul Charter’),33 does not explicitly grant the right to food, but it can be considered indirectly covered by its protection of the right to health (art. 16).34 In this framework, it is worth mentioning the human right to material well-being contained in the Charter of the Organization of American States (OAS),35 which exceeds bare minimum 29

30

31

32

33 34

35

The protocol was adopted by the 2nd Ordinary Session of the Assembly of the Union, 11 July 2003, and provides in art. 15 a ‘right to food security’ inter alia with a right to the means of producing nutritious food (lit. a). See also art. 17 (c) of the Cairo Declaration on Human Rights in Islam, 5 August 1990, UN GAOR, World Conference on Human Rights, 4th Session, Agenda Item 5, UN Doc. A/CONF.157/PC/62/Add.18 (1993) which ensures ‘the right of the individual to a decent living that may enable him to meet his requirements and those of his dependents, including food […]’. This last declaration affirms, as an Islamic response to the UDHR, Islamic Shari’ah as its sole source and, according to its preamble, is a ‘general guidance for member states’ rather than a binding treaty. According to Sen, the protection of entitlements is vitally important to the right to food. A critical analysis of Sen’s famous entitlement approach is offered by Devereux, Sen’s Entitlement Approach. See also Nolan P., pp. 1–28; and Sen’s response: Sen, The Causation and Prevention, pp. 29-40. See also polemically Bowbrick, pp. 105-124. Further references on the sharp critique of Sen’s analysis of the Bengal famine can be found on p. 109. Arts. 13, 17; arts. 4 (1) and 19; art. 12 European Social Charter. For details see Golay/ Özden, pp. 13-14. See also arts. 33-34 of the Charter of Fundamental Rights of the European Union (2000/c 364/01). The Banjul Charter was adopted on 27 June 1981 (OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.58 [1982]), and entered into force on 21 October 1986. A broad interpretation of the right to health is applied by Golay/Özden, p. 12. Nevertheless, this provision is a target definition rather than an enforceable right (see Kaufmann, Hunger als Rechtsproblem, p. 106). Art. 45 (a) of the OAS-Charter (as last amended by the Protocol of Amendment to the Charter of the Organization of American States ‘Protocol of Managua’, adopted on 10 June 1993, at the Nineteenth Special Session of the GA of the OAS): ‘All human beings,

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nutritional needs. Even though non-binding in its character, it is referred to by art. 26 of the American Convention on Human Rights (ACHR)36 and thus constitutes a binding component of this treaty.37 The right to food, moreover, is protected indirectly within the scope of the right to life, which is anchored in many human rights treaties, e.g., art. 6 (1) ICCPR, art. 2 ECHR and art. 4 ACHR.38 Accordingly, the UN Human Rights Committee (‘HR Committee’) noted in its General Comment No. 6 [...] that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.39 Kaufmann believes this wide interpretation is contrary to the systematic and historical background of art. 6 (1) ICCPR, but welcomes its preference for teleological interpretation, in view of the fact that more people now die from hunger and malnutrition than are killed.40 Similarly, former UN High Commissioner for Human Rights, Ramcharan, considers it the duty of the state to assure that the survival requirements of every person within its jurisdiction are satisfied as ‘an unavoidable component of the right to life in its modern sense’, and declares any other conclusion ‘unacceptable in a world in which millions of children die each year on account of hunger and disease’.41 Conse-

36 37 38 39 40 41

without distinction as to race, sex, nationality, creed, or social condition, have a right to material well-being [...], under circumstances of liberty, dignity, equality of opportunity, and economic security’. Signed at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969. Kaufmann points out that this provision is rather rudimentary and barely creates concrete claims for individuals (ead., Hunger als Rechtsproblem, p. 106). See also art. 2 (a) of the CDHRI; and art. 5 of the Arab Charter on Human Rights (adopted by the League of Arab States on 22 May 2004, entered into force on 15 March 2008). HR Committee, General Comment No. 6, 30 April 1982, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 5. Kaufmann, Hunger als Rechtsproblem, pp. 92-93. Ramcharan, The Concept and Dimensions of the Right to Life, p. 6.

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quently, a state’s arbitrary deprivation of people’s food, which leads to death by hunger, is a violation of the right to life.42 In its General Comment No. 12, the Committee on ESCR regards the right to food to be ‘indivisibly linked to the inherent dignity of the human person’ and ‘indispensable for the fulfilment of other human rights enshrined in the International Bills of Human Rights’.43 Cotula and Vidar draw attention to the interrelated and interdependent nature of all human rights, and recommend for a realisation of the right to food that the right to health and education all be fully realised.44 Drèze and Sen observe that famines are less frequent in countries that ensure freedom of thought and expression because the free press can pressure the government.45 Without elections and opposition parties, the government does not have to suffer the political consequences of its failure to prevent famine. Sen is confident that ‘[f]amines have never afflicted any country that is independent, that goes to elections regularly, that has opposition parties to voice criticisms, that permits newspapers to report freely and to question the wisdom of government policies without extensive censorship.’46 For the sake of completeness, reference is made to the prohibition of inhuman or degrading treatment, as enshrined in art. 7 ICCPR and art. 3 ECHR. There is a close connection between lack of access to food and subjectivepsychological self-respect, humiliation and feeling of social exclusion. The Committee on ESCR describes poverty as the lack of basic capabilities to live in dignity.47 In the extreme case of death by hunger, the cruel and inhuman component of starvation’s slow death is obvious.48 But these provisions have been traditionally invoked only in the context of persons in a special relation42

43 44

45 46 47 48

Alston, International Law and the Human Right to Food, p. 21; Kaufmann, Hunger als Rechtsproblem, p. 93. For details about the concept of arbitrariness, see Ramcharan, The Concept and Dimensions of the Right to Life, pp. 19ff. Committee on ESCR, General Comment No. 12, para. 4. Cotula/Vidar, p. 5. See also Special Rapporteur on the Right to Food, Olivier De Schutter, Large-Scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge, 28 December 2009, A/HRC/13/33/Add.2, paras. 28, and 30. Drèze/Sen, p. 263. Public criticism plays an important role in preventing famines, provided that the media are free and can report on disasters. Sen, Freedoms and Needs, p. 32. E/C.12/2001/10, 10 May 2001, para. 7. For details about the human dignity in international law, see Frowein, pp. 121ff.; Marhaun, pp. 146ff. A vivid description of detailed characteristics is provided by Dando, Hunger and Starvation, pp. 273-274.

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ship with the state, such as detention,49 extradition or asylum.50 Such cases are excluded within the present analysis, since my focus is on deprived persons not in physical custody. The increasing debate over whether the notion of inhuman and degrading treatment can be applied to socio-economic conditions is still addressed briefly here to pave the way towards more general acceptance.51 The association with ESCR, in particular the right to food, seems reasonable, since the purpose of art. 7 ICCPR is ‘to protect bodily integrity and human dignity’.52 However, at the time of drafting it was generally agreed that the word ‘treatment’, although broader in scope than the word ‘punishment’, ‘should not apply to degrading situations which might be due to general economic and social factors’.53 That the wide scope of art. 3 ICCPR is limited only to physical or psychological treatment in the area of CPR is regrettable. But in legal doctrine and judicial practice this issue is continually addressed.54 Two decades ago, the European Commission of Human Rights55 did not rule out the possibility of applying art. 3 ECHR to a case where social and economic conditions were

49

50

51

52 53 54

55

Regarding the right of prisoners to sufficient food supply, reference is further made to the right to humane conditions of imprisonment, as enshrined inter alia in art. 10 ICCPR. Especially noteworthy is the ECtHR Judgment, M.S.S. v. Belgium and Greece, 21 January 2011, Application No. 30696/09, where the court considered the living conditions of extreme material poverty (inter alia the lack of food) of an asylum seeker to have attained the level of severity required to bring it within the scope of art. 3 of the convention (para. 263). For details see Nowak, paras. 11-17; Peters/Altwicker, para. 6, Nos. 9-10/15ff. The question has been raised specifically by Antonio Cassese in id., Can the Notion of Inhuman and Degrading Treatment. See also the debate on the UK Human Rights Blog: e.g. van Bueren, Should we have an enforceable right to food?; and English. UN Doc. A/2929 (1955), Annotations on the text of the draft International Covenants on Human Rights, 1 July 1955, p. 31, para. 11. Ibid., p. 31, para. 13. See, most recently, the pending case in front of the ECtHR, in which seven Afghan nationals claim a violation of art. 3 ECHR because Switzerland refused their application for asylum and ordered their expulsion to Italy (Application No. 29217/12, Golajan Tarakhel v. Switzerland, 10 May 2012). The applicants argue that Switzerland did not sufficiently consider that the housing conditions to which they would be exposed in Italy would not comply with the ECHR and are incompatible with the presence of young children. It will be interesting to see what the court decides under these circumstances. The European Commission assisted the ECtHR from 1953 to 1998. Protocol 11 of the ECHR (in force: 1 November 1998) abolished the Commission and enlarged the Court.

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concerned without a special relationship to the state.56 Even though in that case the level of humiliation was not considered to have been reached, the Commission did not reject out of hand the assertion that art. 3 also prohibits humiliating social and economic treatment.57 Cassese considered art. 3 ECHR an appropriate means ‘to make, if only in extreme cases, the protection of economic and social rights more incisive’, and a possible bridge to CPR, which are traditionally covered by the ECHR, and ESCR.58 Legal practice today does not support this broad interpretation.59 Starvation is often a result of inequality and marginalisation.60 Therefore, the prohibition of discrimination is important, as laid down by art. 2 (2) ICESCR, arts. 2 (1) and 26 ICCPR, art. 14 ECHR, art. 1 (1) ACHR, and art. 2 Banjul Charter.61 Discrimination constitutes ‘any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise’ of rights.62 Substantive discrimination is prohibited along with

56

57 58 59

60 61 62

Francine van Volsem v. Belgium, Commission of Human Rights Decision of 9 May 1990, Application No. 14641/89, (published in 2 Revue Universelle des Droits de l’Homme [1990], pp. 384-385). In this case, the petitioner was a mother of two children who was not able to pay the high electricity bills. She claimed inhuman and degrading treatment by the Belgian authorities because the public electricity provider cut off her electricity in a cold period and later only supplied low power voltage. For details, see Cassese, Can the Notion of Inhuman and Degrading Treatment, pp. 141-142. Francine van Volsem v. Belgium, Commission of Human Rights Decision of 9 May 1990, Application No. 14641/89, p. 3. Cassese, Can the Notion of Inhuman and Degrading Treatment, p. 143. A distinguished overview of the level of scientific discussion and the established case law is given by ECtHR Judge Pinto de Albuquerque in his concurring opinion in the recent case Konstantin Markin v. Russia (Konstantin Markin v. Russia, Application No. 30078/06, Judgment of 22 March 2012, Concurring Opinion of Judge Pinto de Albuquerque, pp. 51ff.). For relevant debate in the UK, see e.g., House of Lords, Opinions of the Lords of Appeal for Judgment in the Cause N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), (2005) UKHL 31, 5 May 2005 (demanding a close and direct link between the destitution and the actions of the state and denying a right to a minimum standard of living). See the detailed deliberations on poverty provided on pp. 108ff. See also preamble, arts. 1 (3) and 55 of the UN Charter and art. 2 (1) of the UDHR. Committee on ESCR, General Comment No. 20, para. 7. For a similar definition, see art. 1 CEDAW and art. 2 CRPD.

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formal discrimination.63 When a claim of discrimination is raised in regard to the right to food, art. 2 (2) ICESCR can only be applied in conjunction with rights enshrined in this Covenant, in casu art. 11 ICESCR.64 In addition, art. 26 ICCPR prohibits discrimination and grants an independent right to equality. In contrast to the accessory prohibition of discrimination in art. 2 (1) ICCPR, art. 26 ICCPR does not merely refer to the rights of the Covenant but to every form of discrimination.65 To wit, the HR Committee clarified in ‘Broeks and Zwaan-de Vries against the Netherlands’ that art. 26 ICCPR does not solely duplicate the guarantees set forth in art. 2 ICCPR, and rejected the Netherlands’ objection that the principle of equality only applies to CPR.66 The recent case in which the HR Committee emphasised that an inequitably managed system of fishing quotas may result in discrimination and violate art. 26 ICCPR is also interesting.67 Worth noting here is that the European Court of Human Rights (ECtHR) has been increasingly open to admitting the protection of ESCR under the Convention through its art. 14.68 Equal access of women and men to food is guaranteed by arts. 3 of both ICESCR and ICCPR. The protection of women against starvation is attributed particular importance since, according to studies from African, Asian and Latin American countries, women are disproportionately affected by hunger.69 They often need particular protection because they are more socially vulnerable in cultural contexts (e.g., intra-household allocation rules for food 63

64 65 66

67 68

69

For relevant definitions see UN Committee on ESCR, General Comment No. 20 on NonDiscrimination in Economic, Social and Cultural Rights (E/C.12/GC/20, 2 July 2009), para. 8. Similar terminology (de jure and de facto discrimination) is used in the context of the Limburger Principles on the Implementation of the ICESCR, Committee on ESCR, 27 November 2000, E/C.12/2000/13, paras. 37-38. For details, see Sepulveda, p. 380. Nowak, art. 26, paras. 12-13. HR Committee Decisions Broeks (CCPR/C/29/D/172/1984, 9 April 1987, Communication No. 172/1984) and Zwaan-de Vries, (CCPR/C/29/D/182/1984, 9 April 1987, Communication No. 182/1984), both at paras. 8.3, 12.1-12.3. HR Committee Decision Haraldsson and Sweinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007, Communication No. 1306/2004, paras. 10-11. Judge Pinto de Albuquerque deals with this issue in detail in his concurring opinion, Konstantin Markin v. Russia (Application No. 30078/06), Judgment of 22 March 2012, pp. 51-52. In this context, the 1973 case of the US Supreme Court (Department of Agriculture v. Moreno, 413 US 528 [1973]) is also interesting. See e.g. Sen, Development as Freedom, pp. 104ff.; or Sen, Missing Women, pp. 587-588. Also of interest is the decision of the High Court of Delhi from 6 April 2010, Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C), No. 8853 of 2008 (linking the maternal mortality crisis in India to deep inequalities faced by women).

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and health care). Nevertheless, it is interesting to know that women are physically more resilient than men because they store more body fat and that the female mortality rate during famines is therefore often significantly lower than for males.70 Further International and Regional Human Rights Instruments The protection of ESCR is situated in a changing international environment. In recent decades, international bodies have paid increased attention to the right to food and have generated many international human rights instruments.71 Within the UN system, other bodies, agencies and programmes have intensively concerned themselves with the right to food and provide guidance on its normative definition. The General Comments of the Committee on ESCR are important, particularly its General Comment No. 12 on the Right to Food, which is not legally binding per se, but may be seen as an authoritative interpretation of the ICESCR.72 The Reports of the Special Rapporteur on the Right to Food73 and the FAO Voluntary Guidelines are also significant. Worth mentioning are the Limburg Principles on the Implementation of the ICESCR74 and, on the basis of those, the Maastricht Guidelines on Violations of ESCR.75 They are both elaborated by a group of distinguished experts and are therefore purely explanatory and not binding. They are still valuable in-

70 71

72

73 74

75

Devereux, Famine in the Twentieth Century, p. 11. For an overview, see Sepulveda, pp. 45ff. Many of these Resolutions are considered to be ‘soft law’ (for details on soft law, see Boyle, pp. 122-140; Chinkin, The Challenge of Soft Law, pp. 850–866). They establish fundamental principles that must be followed by UN institutions and may indicate the emergence of norms of customary international law (see Cotula/Vidar, pp. 17-18). E/C.12/1999/5 of 12 May 1999. Chapman and Russell describe the General Comment No. 12 as ‘currently the most authoritative interpretation of the right to food within the UN human right system’ and reflecting ‘the present state of international law’ (Chapman/Russell, p. 167). E.g. Report by Jean Ziegler, E/CN.4/2002/58 of 10 January 2002; or Reports by Olivier De Schutter, A/HRC/12/31 of 21 July 2009, and A/63/278 of 21 October 2008. Limburg Principles on the Implementation of the ICESCR (Committee on ESCR, 27 November 2000, E/C.12/2000/13, pp. 3-15), elaborated by a group of experts in Maastricht from 2 to 6 June 1986. Maastricht Guidelines on Violations of ESCR were developed by a group of experts (inter alia Fons Coomans) in Maastricht (22-26 January 1997) to further elaborate on the preceding Limburg Principles. See the background paper of 27 November 2000 by the International Commission of Jurists, submitted to the Committee on ESCR (E/C.12/2000/13, pp. 16-24).

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terpretive tools and reflect, at least in the view of the creators of the Maastricht Guidelines, ‘the evolution of international law since 1986’.76 There are many more instruments that, despite not being legally binding, provide principles and guidelines on the right to food. Many international conferences have adopted declarations and programmes of action that contain relevant provisions. In this context, the codes of conduct adopted by non-governmental organisations (NGOs) and humanitarian agencies are also interesting.77 1.3 Related International and Regional Provisions and Instruments There are many provisions from different legal areas that concern the right to food. In particular, there are provisions on the access to water (a) and to land (b), provisions from international environmental (c) and economic law (d), and the prohibition of genocide and crimes against humanity (e). a) Right to Water The protection of access to water goes hand in hand with the protection of access to food.78 The Commission on Human Rights extended the original mandate of the Special Rapporteur on the Right to Food to cover the issue of drinking water ‘to pay attention to the issue of drinking water, taking into account the interdependence of this issue and the right to food’.79 Ziegler emphasised that it is impossible to discuss nutrition and food security without including safe drinking water, which is essential to adequate nutrition.80 The right to food is directly affected when water is polluted,81 and also when water 76 77 78

79 80

81

E/C.12/2000/13, p. 16, introduction. These documents are listed in Cotula/Vidar, pp. 18-21. See, e.g. Committee on ESCR, General Comment No. 15, The Right to Water, U.N. Doc. E/C.12/2002/.11, 20 January 2003, para. 7; Statement of Understanding accompanying the United Nations Convention on the Law of Non-Navigational Uses of Watercourses, U.N. Doc. A/51/869 (1997). Commission on Human Rights, Res. 2001/25, para. 9. Report submitted by the former Special Rapporteur on the Right to Food, Jean Ziegler, in accordance with Commission on Human Rights Res. 2002/25, UN Doc. E/ CN.4/2003/54, 10 January 2003, para. 35. He illustrates linkage between the right to water and the right to food by means of concrete examples (ibid., paras. 44-51). See e.g. the pollution in the Ecuadorian Amazon (‘Rainforest Chernobyl’) caused by ChevronTexaco (Amazon Watch, Pressure Mounts on ChevronTexaco to Confront its Responsibility for the ‘Rainforest Chernobyl’, 26 April 2004, available at http://chevrontoxico.com/news-and-multimedia/2004/0426-press-release-on-chevron-shareholdermeeting).

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sources are privatised so that farmers are prevented from using water in irrigation, or so that water becomes unaffordable.82 From a global point of view, water is one of the scarcest resources and has a powerful impact on global food production.83 There is a relatively new debate over a distinct right to water.84 The GA recognised the right to safe and clean drinking water and sanitation as a human right essential to the full enjoyment of life and all human rights.85 The HRC reaffirmed this and recognised that […] the human right to safe drinking water and sanitation entitles everyone, without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use and to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity.86 In March 2008, the HRC initially appointed an Independent Expert on the Issue of Human Rights Obligations related to Access to Safe Drinking Water and Sanitation,87 and subsequently extended the mandate as ‘UN Special Rapporteur on the Right to Safe Drinking Water and Sanitation’.88 In this book, I do 82

83

84 85 86 87 88

Stiglitz, pp. 54-58. For details see Narula, pp. 721-722; Galiani/Gertler/Schargrodsky, pp. 83-120. For details on the human rights obligations and responsibilities that apply in cases of non-state service provision of water, see the Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, A/HRC/15/31, 29 June 2010. For details, see, for instance, The UN-Water Thematic Initiatives, Coping with Water Scarcity, August 2006, available at www.unwater.org/downloads/waterscarcity.pdf; The Water Scarcity Index, provided by the United Nations Environment Programme (UNEP), available at www.unep.org/dewa/vitalwater/art. 77.html, or The International Decade for Action: Water for Life 2005-2015 (details provided at www.who.int/water_ sanitation_health/decade2005_2015/en/). Details are provided by the information portal on the human rights to water and sanitation under www.righttowater.info. GA Res. 64/292 of 28 July 2010, para. 1. HRC, Res. on Rights to Water and Sanitation, A/HRC/24/L.31, 23 September 2013, preamble. A/HRC/RES/7/22, 28 March 2008, para. 2. Catarina de Albuquerque took up the mandate in November 2008. Catarina de Albuquerque is now holding the position of Special Rapporteur on the Right to Safe Drinking Water and Sanitation (A/HRC/RES/16/2, 8 April 2011, para. 4; A/ HRC/24/L.31, 23 September 2013, para. 15).

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not deal with the right to water separately, since the term ‘food’ is extended to include water. The human right to water is derived from the right to an adequate standard of living89 and is implicitly included in my examination. b) Access to Land Property rights and the right to food are closely connected. Loss of land frequently engenders starvation. Soil is a deposit of mineral or organic material and functions as a natural medium for the growth of rooted, land-based plants, upon which the world food depends.90 Access to land and security of tenure are crucial to the enjoyment of the right to food. Agriculture is a source of livelihoods for an estimated 86% of rural people.91 The fatal consequences of loss of land are pronounced when farmers are driven from their acreage. The link between access to land and food security can be illustrated by the example of Zimbabwe: In 2002, President Mugabe ordered 2,900 white commercial farmers to abandon their homes, land and livelihoods. This mass eviction, conducted without appropriate compensation, led to mass starvation.92 The European Parliament stressed in its resolution on Zimbabwe that ‘the food crisis in Zimbabwe has been seriously exacerbated by the actions of the Mugabe regime, most notably the recent enforcement of the deadline for thousands of farmers served with acquisition notices to leave their land under the provisions of the amended Land Acquisition Act’;93 and strongly condemned ‘the regime’s use of food supplies as a political weapon against opposition supporters’.94

89 90 91

92 93 94

Res. A/HRC/24/L.31, 23 September 2013, para. 1. See also HRC Res. 15/9. Vaughn points out that 90% of the food supply throughout the world comes from only 15 plants and 8 animal species (Vaughn, p. 367). World Bank, World Development Report, Agriculture for Development 2008, World Bank: Washington, DC 2007, p. 3; Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, on ‘Access to Land and the Right to Food’, A/65/281, 11 August 2010, pp. 3-3. Butcher. European Parliament Res. on Zimbabwe of 5 September 2002, Official Journal of the European Union, C272E/489, P5_TA(2002)0412, para. A. Ibid., para. 1. Similar examples are the forced evictions of whole districts, as, for instance the forced eviction of the informal settlement in Nairobi by the Kenyan Government (Amnesty International News Report, Kenyan Government must end forced evictions, 16 September 2013); or the evictions in Nigeria’s Port Harcourt (Amnesty International Action Plan against ‘Illegal evictions in Abonnema Wharf, Port Harcourt, Nigeria’). The documents are available online on www.amnesty.org.

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Many people do not possess a formal title to their property. In the event of a natural disaster, rise in sea level or climate change, they lose their land and cannot use a title to reclaim their land rights.95 The lack of a legal protection of their land tenure renders them powerless against forced evictions.96 Land grabbing challenges the right to food, particularly of indigenous people.97 The Special Rapporteur on the Right to Food, De Schutter, addressed the rights of land users and elaborated minimum human rights principles applicable to large-scale land acquisitions or leases.98 The ‘Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security’ are also important in this context.99 Food shortage can lead to distress migration. Starvation is often accompanied by the movement of large numbers of displaced people, who are exposed to hazardous environments and new diseases or unsafe water. Devereux points out that mortality rates are often highest in refugee camps be95

96

97

98

99

See the debate in the seminar on ‘What Role Do Property Rights Play in Climate Change?’, held at the British Institute of International and Comparative Law (BIICL), London, 6 June 2013 (particularly the deliberations by Professor Philippe Cullet). For details on forced evictions, see Committee on ESCR, General Comment No. 7, Forced Evictions and the Right to Adequate Housing, UN. Doc. E/1998/22, 20 May 1997, Annex IV; Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, E/CN.4/2004/48, 8 March 2004. See also the ‘Forced Evictions Briefing’ by Amnesty International (available online on www2. amnesty.org.uk/sites/default/files/forced_evictions_briefing_2010.pdf). Most interesting is the Decision of the Constitutional Court of South Africa of 13 May 2005, President of the Republic of South Africa and Anor. v. Modderklip Boerdery (Pty) Ltd 40 2005 (5) SA 3 (CC). Special Rapporteur on the Right to Food, Olivier De Schutter, Report, A/HRC/13/33/ Add.2, 28 December 2009, Annex; id., How not to think of land-grabbing, pp. 249–279; Borras/Hall/Scoones/White/Wolford, pp. 209-216. See also the landmark decision against forced evictions of indigenous people without adequate compensation by the High Court of Uganda (Baleke and 4 Others v. Attorney General and 2 Others, Civil Suit No. 179 of 2002, Judgment of 28 March 2013). Special Rapporteur on the Right to Food, Olivier De Schutter, Report, A/HRC/13/33/ Add.2, 28 December 2009, Annex; id., Large-Scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge, 28 December 2009, A/HRC/13/33/Add.2. For details see below on pp. 112ff. The guidelines were officially endorsed by the CFS on 11 May 2012. For details, see the article by the FAO ‘Countries adopt global guidelines on tenure of land, forests, fisheries’ (11 May 2012, available at www.fao.org/news/story/jp/item/142587/icode/) and the FAO Brochure on ‘Governance of Tenure From Finding Common Ground to Making it Happen’, available at www.fao.org/fileadmin/user_upload/newsroom/docs/VGflyeren.pdf.

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cause of their overcrowded and unsanitary environments; these conditions increase vulnerability since displaced persons already suffered from severe nutritional stress when they arrived.100 The protection of Internally Displaced Persons (IDPs) is also essential. According to the Guiding Principles on Internal Displacement by the UN Office for the Coordination of Humanitarian Affairs (OCHA),101 IDPs are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence as a result of, or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights, or natural or human-made disasters, and who have not crossed an internationally recognised state border.102 The Guiding Principles on Internal Displacement ensure safe access to essential food for IDPs.103 Many provisions take into account their special need for protection.104 In this context, arts. 20 and 23 of both the Convention Relating to the Status of Refugees105 and the Convention Relating to the Status of Stateless Persons106 deserve mention: They ensure non-discriminatory access of displaced persons to products in short supply and to public relief

100 101

102 103 104

105

106

Devereux, Famine in the Twentieth Century, p. 5. The OCHA Guiding Principles on Internal Displacement were presented to the Commission on Human Rights in 1998 by then Representative to the UN Secretary-General on Internally Displaced Persons, Francis Deng. In September 2005, the assembled heads of state and governments at the World Summit in New York recognised the Guiding Principles as ‘an important international framework for the protection of internally displaced persons’ (GA Res. 60/L.1, par. 132, UN Doc. A/60/L.1). Introduction, para. 2, Guiding Principles on Internal Displacement. For a detailed analysis, see Kälin/Williams/Koser/Solomon (eds.), pp. 47ff. Principle 18 (2). An overview of the relevant Resolutions and their content is provided in the very practical ‘Compilation of UN Resolutions on Humanitarian Assistance’, OCHA, Policy and Studies Series 2009, pp. 31-47. Adopted on 28 July 1951 by the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, convened under GA Res. 429 (V) of 14 December 1950, entered into force on 22 April 1954, in accordance with art. 43. According to the Refugee Convention, a refugee is someone unable or unwilling to return to their country of origin owing to a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion (art. 1, Convention relating to the Status of Refugee of 28 July 1951). For further details concerning the application of the Convention and the protection, see Cotula/Vidar, pp. 12-14. Adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by ECOSOC Res. 526 A (XVII) of 26 April 1954, entered into force on 6 June 1960, in accordance with art. 39.

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and assistance.107 Art. 14 (2) (g) CEDAW protects women in rural areas from discrimination and ensures them the right to equal treatment in land and agrarian reform as well as in land resettlement schemes. c) International Environmental Law International environmental law also contributes to the protection of the right to food in a broader sense. According to the International Court of Justice (ICJ), the environment ‘is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.108 The protection of the environment is essential to food security as a whole. Many food shortages and related conflicts are caused by the negative effects of global warming, e.g., drought, desertification and rise of sea level. Climate change has become one of the major challenges to social development and human security.109 The fundamental principles of international environmental law, such as the integration of environmental protection in the development process110 and regulation of the environmental impact assessment,111 are related to the design and implementation of food aid programmes.112 The fight against starvation should not be considered separately and requires a comprehensive approach that takes linkages into account. Environmental issues cannot be overlooked; environmental protection and sustainable development must be addressed to combat hunger. Modern farming heavily depends on fossil fuels to power farm machinery, 107 108 109

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Golay/Özden, p. 11. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 241, para. 29. Vaughn emphasises the effects of a sea level rise on agriculture and uses Bangladesh as an example that a rise of only one meter will result in a loss of approximately 10% of the country’s land (Vaughn, p. 371). For details, see Béné, who demonstrates the interconnections between climate change and social protection (ibid., pp. 67-70). Principle 4 of the Rio Declaration on Environment and Development of 1992 (Report of the UN Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, UN.Doc. A/CONF.151/26 [Vol. I], Annex I). In particular, Principle 17 of the Rio Declaration on Environment and Development; art. 14 of the Convention on Biological Diversity of 1992 (adopted at the Earth Summit in Rio de Janeiro, on 5 June 1992, entered into force on 29 December 1993); art. 4 (1) (f) of the Framework Convention on Climate Change of 1992 (New York, 9 May 1992); and art. 12 of the Convention on the Law of the Non-Navigational Uses of International Watercourse of 1997. In this connection, the European Charter on Water Resources (17 October 2001, adopted by the Committee of Ministers of the Council of Europe, at the 769th meeting of the Ministers’ Deputies) is also interesting. See Cotula/Vidar, p. 14.

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and on chemical fertilisers, pesticides and herbicides. New strategies must be developed to ensure sustainable agriculture.113 This is explicitly requested by art. 11 (2) (a) ICESCR. d) International Economic Law The interdependence of social development and stable economic growth has already been emphasised. International economic law has a direct impact on human rights in general, and the right to food in particular.114 It contains concrete provisions relevant to the supply of food: Hunger and poverty is frequently addressed under existing world trade law.115 The Food Assistance Convention of 2013,116 for example, aims ‘to contribute to world food security, and to improve the ability of the international community to respond to emergency food situations and other food needs of developing countries’.117 It includes a qualitative and quantitative commitment for its member states to supply food aid to developing countries.118 The international community increasingly acknowledges the key role of trade and market expansion in enhancing world food security. Economy and trade must be considered in order to ensure food security.119 Food trade and 113 114

115 116

117 118

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Bein, p. 376. See, for instance, the Report submitted by the Special Rapporteur on the Right to Food, Olivier De Schutter, on agroecology (A/HRC/16/49, 17 December 2010). For details on the relationship between human rights and economy in general, see Diggelmann, Wirtschaftsvölkerrecht und Menschenrechte, particularly pp. 79-83, on the existing antagonisms; Kaufmann, Wirtschaft und Menschenrechte, pp. 744-753. For an overview, see Kaufmann/Grosz, Poverty, Hunger and International Trade. The Food Assistance Convention entered into force on 1 January 2013, and replaced the former Food Aid Convention of 1999. The economic background is clear; the first Food Aid Convention of 1967 was negotiated in the context of the General Agreement on Tariffs and Trade (GATT) Kennedy Round. The subsequent Food Aid Convention of 1995 formed, together with the Grains Trade Convention, an integral part of the International Grains Agreement of 1995. For further information, see Kaufmann, Hunger als Rechtsproblem, pp. 104-106. Preamble of the 2012 Food Assistance Convention. Art. III. Cotula/Vidar, pp. 14-15, also mentions the sources of law annexed to the Agreement Establishing the World Trade Organization of 1994, such as the Agreement on Agriculture, the Agreement on the Application of Sanitary and Phytosanitary Measures or the Ministerial Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Countries. Ibid., pp. 14-16, provides a list of other related international guidelines by internationally recognised bodies, which are, however, non-binding per se. See, for instance, the ‘Global Hunger and Food Security Initiative’ by the USA (Dando, Unbounded Food Trade, pp. 411-413. The positive impact of free trade on the protection

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demand factors have a strong impact on world food prices and thus on the availability of food. The global food market is particularly volatile. While farmers may suffer from a decline in commodity prices, a rise in food prices may make food unavailable to the consumers.120 There is growing recognition that famine and other threats to food security are a function of production, exchange, and response failures that undermine the ability of poor and vulnerable groups to command entitlements in volatile market settings.121 e)

Prohibition of Genocide and the Prohibition of Crimes against Humanity The prohibition of genocide and the prohibition of crimes against humanity are two well-known provisions in international criminal law. Deliberate starvation of the population as a means to an end may amount to genocide or a crime against humanity.122 Genocide, according to the Convention for the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’),123 is the intentional destruction of a national, ethnic, racial and religious group, in whole or in part.124 Crimes against humanity are certain acts listed in art. 7 Rome Statute of the International Criminal Court (‘Rome Statute’) that are committed ‘as part of a widespread or systematic attack directed against any civilian population’.

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121 122 123

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of human rights in general is described by Diggelmann, Wirtschaftsvölkerrecht und Menschenrechte, pp. 84-85. For details see Hebebrand/Wedding. Sen, Development as Freedom, p. 164; Dando, Unbounded Food Trade, pp. 407-415. Strategies to manage volatility are provided, for instance, by the World Bank: Banerji/ Rawlings, see e.g., p. 1. For an overview of the different approaches by economics experts, see Devereux, Famine in the Twentieth Century, pp. 18-21. Deliberate starvation in times of an armed conflict might further amount to a war crime (see the analysis on IHL on pp. 161ff.). The text of the Genocide Convention was adopted by the GA on 9 December 1948. The Convention entered into force on 12 January 1951, after obtaining the requisite twenty ratifications required by its art. XIII (UN Treaty Series, Vol. 78, p. 277). The Convention has since then been ratified by 144 parties. For information on the participating states, see http://treaties.un.org. Art. II of the Genocide Convention. See also art. 6 (c) Rome Statute; art. 4 of the Statute of the International Tribunal for the Former Yugoslavia (originally published as an annex to document S/25704 and Add.1, approved by the SC in its Res. 827 [1993] of 25 May 1993, and amended on 13 May 1998 by Res. 1166 [1998], and on 30 November 2000 by Res. 1329 [2000]); art. 2 of the Statute of the International Tribunal for Rwanda (approved by the SC in its Res. 955 [1994] of 8 November 1994).

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If the elements of crime are met, commission of the crime of genocide or a crime against humanity may result in prosecution and conviction by an international criminal court. These criminal prohibitions were developed to entrench the concept of individual rights.125 HRL and international criminal law have a ‘common base’126 since both are rooted in the movement to identify and promote the individual as a new participant in international law.127 Genocide was originally characterised as ‘a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’.128 The connection between international protection of human rights and the international criminalisation of its most serious breaches is evident. Without doubt, individual criminal accountability for genocide and crimes against humanity contributes to the enforcement of international human rights.129 These prohibitions serve as general norms that impose obligations on states. The Genocide Convention, for instance, requires the contracting parties to undertake to prevent and punish genocide, whether committed in time of peace or war (art. 1). Classifying deliberate starvation as genocide or a crime against humanity is particularly helpful since both are prohibited under customary international law.130 This classification provides a distinct source of obligation for the states. The ICTY held that ‘the [Genocide] Convention has been viewed as codifying a norm of international law long recognised and which case-law would soon elevate to the level of a peremptory norm of general international law ( jus cogens)’.131 Prohibiting genocide is nowadays a peremptory norm of international law, imposing on states certain inderogable duties and obliga125

126 127 128 129

130 131

For the development of the prohibition of genocide, see, inter alia, Quigley, pp. 7-8; for the background on the prohibition of crimes against humanity, see, pars pro toto, Bassiouni, Crimes against Humanity, pp. 1ff. Cryer/Friman/Robinson/Wilmshurst, p. 13. Van den Herik, p. 2. GA Res. 96, UN GAOR, 1st Session, Part. 2, Resolutions, p. 188, UN Doc. A/64/Add.1 (1946). See Bassiouni, Crimes against Humanity, p. 217; see also id., The Proscribing Function. Bassiouni was inter alia Chairman of the UN Drafting Committee of the 1998 Diplomatic Conference on the Establishment of an International Criminal Court. Ratner and Abrams, for instance, mention these crimes as a means of enforcing international human rights (Ratner/Abrams). But Van den Herik points out that international criminal law is primarily concerned with violations of CPR (van den Herik, p. 1). See Quigley, p. 80. ICTY, Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment 2 August 2001, para. 541; see also ICJ, Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23.

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tions erga omnes.132 Crimes against humanity are also generally seen as a peremptory violation with related erga omnes obligations.133 Genocide and crimes against humanity only cover the most atrocious violations of human rights. Genocide must be committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.134 Crimes against humanity require widespread or systematic acts of violence.135 Considering the specific field of study, these actus reus and mens rea elements should not create any difficulties. A prominent example of an existing deliberate plan for the systematic eradication of entire peoples was the ‘Final Solution’ designed at the Wannsee Conference in 1942 by National Socialist Germany: The National Socialists discovered that starving unwanted groups to death was an efficient – although a slow – way to eliminate as many ‘useless eaters’ as possible from the eastern area and to further the murder of Soviet and Polish Jews.136

2

Restrictions to the Right to Food

This section highlights existing restrictions to the right to food. It first addresses the problem of ratification gaps and diverging legal obligations (2.1). It then discusses the limitation of the right to food (2.2), derogation in emergency situations (2.3) and limited legal force (2.4). 2.1

Filling the Ratifijication Gaps and Avoiding Conflicts of Diverging Legal Resources Human rights treaties are solely binding upon the states that ratified them. The ICESCR, in which the right to food is most clearly pronounced, is rat-

132

133 134 135 136

See the ICJ, in its decisions Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, p. 72, para. 161, and Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, ICJ Reports 1970, para. 34. Bassiouni, Crimes against Humanity, pp. 210ff. For details see id., International Crimes, particularly p. 68. Art. II Genocide Convention; art. 6 Rome Statute. Art. 7 (1) Rome Statute. On the relationship between the two provisions, see Quigley, pp. 13-14. For details, see Collingham, p. 7. She also points out that many German prisoners in the Soviet hands died after being put on a starvation diet (ibid.).

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ified by only 161 states.137 The basis for the states’ rights and obligations is formed by international treaty law and by customary international law.138 Narula points out that non-ratification is not the only problem: Bilateral or international trade agreements can significantly undermine a state’s ability to respect, protect and fulfil the right to food. This incompatibility of multiple legal regimes can be addressed, to a certain extent, by locating the right to food in customary international law.139 Some fundamental human rights are accepted as customary law and are therefore binding on all states, beyond the treaties they have ratified. The existence of a rule of customary international law requires the presence of two elements: state practice (usus) and a belief that such practice constitutes a legal obligation under international law (opinio juris sive necessitatis).140 The biases of states that oppose ratification of the specific international treaties are particularly interesting. Evaluating the right to food requires examination on a case-by-case basis, and each aspect must be considered. Peremptory provisions bind all states regardless of their customs or objections.141 Below, I focus on the central question of deliberate starvation as means to an end, and analyse relevant customary law, where and insofar it is necessary (chapter II). Though a detailed examination of the protection of the right to food in general142 is beyond the scope of the present analysis, three points are worth noting: 137

138 139 140

141 142

For example, the USA, South Africa and Cuba are not party to the ICESCR. As of 5 December 2013, this was the list of all participant states: http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en. The various sources from which international law is derived are authoritatively listed in art. 38 (1) (b) of the Statute of the ICJ of 1946. Narula, p. 771. See ICJ, Nicaragua v. USA (Military and Paramilitary Activities in and against Nicaragua), Decision of 27 June 1986, Merits, ICJ Reports 1986, paras. 183-190. In para. 183 the ICJ refers to its previous decision in the Continental Shelf-case (Libyan Arab Jarnahiriyu/Malta), ICJ Reports 1985, pp. 29-30, para. 27: ‘It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of states, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them’. For further information see De Schutter, International Human Rights Law, pp. 50-53; Henckaerts, Study on Customary International Humanitarian Law, pp. 178-184. For more information about the principle of persistent objector in international law, see Narula, pp. 771-772, FN 408. A detailed account of the protection of the right to food by customary international law is provided in Narula, pp. 771ff.

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(i) The right to food is, at least in its basic form of the ‘right to be free from hunger’ part of customary international law.143 Even states that have not ratified the ICESCR help to ensure freedom from hunger and act consistently with the recognition that people should not go hungry.144 Granting only a minimal daily caloric intake necessary for the bare survival of a person, the right to be free from hunger is a minimum standard directly linked to the right to life. Accordingly, Narula provides strong evidence to support the right to be free from hunger as customary international law.145 Some experts have even defended the view that the right to life, defined as protection of the minimum essential food necessary for the bare survival of the person, is a peremptory norm of international law.146 If so, it supersedes all other rules of international law and binds all states despite their objections ( jus cogens).147 Although the different sources of international law are generally not ordered in a hierarchy, a treaty that, at the time of its conclusion, violates a peremptory norm of international law is to be considered void.148 Even though this is a tempting conclusion to draw, most experts agree that neither the right to food nor the right to life per se are part of peremptory international law, but only particular aspects of these human rights.149 Therefore, it is crucial to 143

144

145 146

147 148

149

FAO, The Right to Food Guidelines, Information Papers and Case Studies, Rome: FAO 2006, pp. 103-106 (para. 19, p. 106: ‘Marshalling all the evidence, although there are dissenting opinions, the majority of commentators asserts that under international law there is currently found, minimally a treaty right conjoined with a customary right to be free from hunger’); Buckingham, p. 290. Narula, p. 793. She demonstrates the state practice of the USA, which have not ratified the ICESCR and have consistently opposed the recognition of ESCR in general, but still supported efforts to ensure freedom from hunger and affirmed their commitment to providing food aid and ending hunger (ibid., pp. 793-796.). Narula, pp. 791ff.; see also Buckingham, pp. 290ff. Kaufmann, Hunger als Rechtsproblem, p. 94. Narula p. 67. See also Ramcharan, who refers to the right to life in general as jus cogens (Ramcharan, The Concept and Dimensions of the Right to Life, p. 28). Narula, pp. 771-772, FN 408. See arts. 53, 64 and 71 of the Vienna Convention on the Law of the Treaties (VCLT). A peremptory norm of general international law is defined in art. 53 of the VCLT as ‘a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. See Aust, Handbook of International Law, p. 10; Crawford, Brownlie’s Principles of Public International Law, pp. 594ff.; De Schutter, International Human Rights Law, p. 61. The list of included human rights and relating prohibitions with peremptory character is controversial and depends on the particular nature of the subject matter (see in de-

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consider whether or not the specific obligation belongs to jus cogens in each individual case. For example, prohibition of genocide and crimes against humanity is generally accepted as a jus cogens norm.150 De Schutter points out that the list of jus cogens norms is in constant evolution and that it would be ‘both erroneous and counter-productive to seek to provide an authoritative classification’.151 The current uncertainty about the list of human rights that have acquired the status of peremptory norms has moreover been increased by deliberations on the erga omnes nature of certain obligations.152 The ICJ identified ‘the principles and rules concerning the basic rights of the human person’ as having erga omnes character. 153 However, as De Schutter perceptively clarifies, these two notions refer to different consequences: The jus cogens character refers to its hierarchically superior position, whereas the erga omnes nature implies that all states have a legal interest in seeking to enforce.154 To sum up, the prohibition against deprivation of food necessary to life is part of customary law. A state’s persistent objection to that custom may exempt it from such a

150

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152 153 154

tail Simma/Alston, pp. 88ff.). See also the Commentary to the ILC-Articles (Vol. II, Part Two, para. 5 of the comment on art. 26); Aust, Handbook of International Law, p. 10; Narula, p. 775, FN 428 (about the [missing] jus cogens-status of the right to food: ‘[…] the status of the right to food as a jus cogens norm is not a given’). This narrow interpretation of peremptory norms is further supported by the fact that art. 15 (2) ECHR, for instance, explicitly allows deaths resulting from lawful acts of war. Commentary to the ILC-Articles (Vol. II, Part Two, para. 5 of the comment on art. 26). See Aust, Handbook of International Law, p. 10; De Schutter, International Human Rights Law, pp. 64ff.). Ramcharan, who refers to the right to life as jus cogens, takes a different view, for example (Ramcharan, The Concept and Dimensions of the Right to Life, p. 28). De Schutter, International Human Rights Law, pp. 64-65. Particularly interesting are further his observations about peremptory norms with regional character are particularly interesting (ibid., pp. 65-66). For a further examination of the character of human rights as jus cogens, see Bianchi, pp. 491ff. Simma and Alston even see an existing ‘identity crisis’ of customary law and jus cogens norms (Simma/Alston, pp. 88ff). ICJ decision in the Barcelona Traction Case, ‘Barcelona Traction, Light and Power Company, Limited’, Judgment of 26 February 2007, ICJ Reports 1970, paras. 33-34. De Schutter, International Human Rights Law, p. 68: ‘[W]hile all peremptory norms of international law also are owed to the community of states as a whole and thus are erga omnes, the reverse is not true, as not all erga omnes obligations are established by peremptory norms of general international law’.

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norm, unless starvation falls within the peremptory prohibition of genocide or crimes against humanity.155 (ii) Less severe deprivations that restrict the adequate food standard, but which leave sufficient food for survival, are addressed by the right to adequate food. As regards the customary status of the right to adequate food, the situation is more complex. The many declarations and national constitutions that guarantee an adequate standard of food supply may arguably indicate existing state practice, but few believe this practice constitutes a legal obligation under international law.156 The recognition of corresponding legal obligations is far from universal; some states consider the right to adequate food to be only a moral commitment.157 The primacy of CPR over ESCR throughout the entire historical development of HRL has limited the development of customary HRL by heavily favouring CPR. The Committee on ESCR also held the position that only ‘basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law [...]’.158 iii) We must determine if the principle of non-discrimination has acquired the status of customary law. The prohibition of discrimination in the enjoyment of ESCR is, apart from art. 2 (2) ICESCR, anchored in the preamble, arts. 1 (3) and 55 of the UN Charter and art. 2 (1) of the UDHR. Despite its nonbinding character, the UDHR is accepted today by all countries.159 Because 155 156

157 158

159

See about the persistent objector rule Narula, pp. 771-772, FN 408. An overview of constitutions around the world is provided by Knuth/Vidar. For a collection of the relevant case law see www.escr-net.org/caselaw. A detailed examination is provided at Narula, pp. 780ff. See also Kaufmann, Hunger als Rechtsproblem, pp. 166ff. (p. 168: ‘Die Statuierung eines umfassenden völkergewohnheitsrechtlichen Anspruchs auf Nahrung ist jedoch heute verfehlt und lässt sich nicht mit den herrschenden internationalen Strukturen, sondern allenfalls mit Wunschvorstellungen vereinbaren.’). See, in this context, the explanation of position by the USA during the 19th Session of the HRC on the Resolution on the Right to Food: ‘It is our objective to achieve a world where everyone has adequate access to food, but we do not treat the right to food as an enforceable obligation’. (Available at http://geneva.usmission.gov/2012/03/22/us-joins-consensuson-hrc-Res.-on-the-right-to-food/). E.g. the USA, which has not ratified the ICESCR and has consistently opposed the recognition of a right to food. See in detail Narula, pp. 793ff. Committee on ESCR, ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel. 23/05/2003’, 13th Session, UN. Doc. E/C.12/1/Add.90, 23 May 2003, para. 31. Golay/Özden, p. 10.

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of its universal recognition, the prohibition of discrimination has reached the status of customary law. Thus, discrimination on the basis of race, colour, sex and the like is contrary to existing obligations under customary international law.160 It has occasionally even been argued that the principle of nondiscrimination has achieved jus cogens status.161 2.2 Limitation Clauses Very few human rights are of an absolute character and may not be restricted even for compelling reasons.162 Absolute rights are the exception. Generally, limitation clauses in HRL instruments permit states to lawfully limit the scope of protected human rights in order to protect public health, public safety and morals, to restore order, and to protect fundamental rights and freedoms of others. Limitations may only be imposed on human rights if certain conditions are satisfied (legality, legitimacy and proportionality).163 The common requirements restricting the enjoyment or exercise of human rights are not limited to interferences with CPR.164 As for the ICESCR, art. 4 allows the member states to restrict the free exercise of the rights of the Covenant (such as the right to food) under certain conditions: […] [T]he state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the na160

161

162 163

164

See the judgment adopted by the House of Lords of the United Kingdom of Great Britain and Northern Ireland (UK), R. v. Immigration Officer at Prague airport and another (Respondents), ex parte European Roma Rights Centre and others (Appellants) (2004) UKHL55, paras. 98, and 102 (particularly about racial discrimination). For instance, the Inter-American Court of Human Rights unanimously found that principles of non-discrimination belong to jus cogens (Inter-American Court of Human Rights, advisory Opinion OC-18/03 of 17 September 2003, requested by the United Mexican States on the Juridical Condition and Rights of the Undocumented Migrants, paras. 97-101). See also Restatement (Third) of Foreign Relations Law of the United States (1987), para. 702 (defining jus cogens norms as peremptory and specifying ‘systematic racial discrimination’ as one such norm [lit. f]). E.g., the prohibition of torture or other cruel, inhuman or degrading treatment or punishment (art. 7 ICCPR). See De Schutter, International Human Rights Law, p. 257. De Schutter, International Human Rights Law, p. 288 (for details about the different conditions shall be referred to pp. 293ff.). A descriptive application of this test (herein with respect to the freedom of movement) is provided at General Comment No. 27 of the HR Committee, 2 November 1999, CCPR/C/21/Rev.1/Add.9, paras. 11-16. De Schutter, International Human Rights Law, p. 291. For instance, the Federal Supreme Court of Switzerland takes a different view in BGE 129 I 12 E. 6, p. 19 = Bull. Com. Venise 2003/1, p. 131; or BGE 130 I 71 E. 4, p. 74 = Bull. Com. Venise 2004/1.

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ture of these rights and solely for the purpose of promoting the general welfare in a democratic society.165 Despite this authorisation, the Committee on ESCR has emphasised that art. 4 ICESCR is ‘primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by states’.166 Thus, Sepulveda, UN Special Rapporteur on Extreme Poverty and Human Rights, recommends a very restrictive interpretation of this article.167 Accordingly, para. 47 of the Limburger Principles stresses that the Covenant’s limitation clause ‘was not meant to introduce limitations on rights affecting the subsistence or survival of the individual [...]’. There are some who claim that the right to food is considered, by virtue of its nature, to be subject to no limitations at all.168 In my view, a differentiated approach is necessary. The minimum core content of the right to food, that is to say, the right to be free from hunger, should not be subject to restrictions. Limiting the core content would deprive the ICESCR of its raison d’être.169 A limit to the right to adequate food is conceivable, provided that the state concerned meets the burden of justifying the restriction.170 Despite the great importance attached to the above safeguards against undue limitations, the relevance of art. 4 ICESCR is not (yet) fully recognised in practice.171 The precise and narrowly defined formulation in art. 4 ICESCR connotes a narrower set of limitations than other human rights treaties.172 It provides more control than the standard of progressive realisation, and does not justify nonfulfillment of rights on the basis of scarce resources. Young emphasises that the term ‘general welfare’ refers to ‘the dignity and wellbeing of the community, without attention to economic arguments’.173 In my view, 165 166 167 168 169 170

171 172 173

Art. 4 ICESCR. See also Limburger Principles on the Implementation of the ICESCR, 2000, paras. 46-56; Cotula/Vidar, p. 6. General Comment No. 14, E/C.12/2000/4, 11 August 2000, para. 28. For details, see Alston/Quinn, pp. 197ff. Sepulveda, pp. 279ff. (she explains on p. 281 that restricting the enjoyment of a right would affect the very nature of the right if it implies a de facto derogation). See e.g. Eibe Riedel, a member of the Committee on ESCR, in E/C.12/1998/SR.32, para. 53. Committee on ESCR, General Comment No. 3, para. 10; in general, Sepulveda, p. 281. For a statement of the Committee on ESCR about the burden of justifying measures in relation to each of the elements identified in art. 4 ICESCR, see, inter alia, General Comment No. 14, para. 28 (regarding the right to health). A critical analysis is provided by Sepulveda, pp. 285ff. Young, p. 105. For details, see Müller, pp. 557ff. Young, pp. 106-107. See also Müller, pp. 573-574, 593.

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this definition also excludes short-term limitations of the right to adequate food, even if they could lead in the long run to economic growth and, thus to social development (see e.g. the Ethiopian dam ‘Gibe III’174). The goods concerned are too fundamental to allow such trade-offs. 2.3 Emergency Exceptions In addition to the previous cases of limited scope, there are further circumstances in which human rights may be suspended as a whole. Deliberate starvation as means to an end often occurs during tense political situations and states of emergency, so it is important to deal briefly with the question of derogation clauses. In contrast to many human rights treaties,175 the ICESCR does not contain an explicit derogation clause. The Covenant fully applies in emergency situations like war, internal conflict or internal disturbances.176 Analysing the work of the UN Committee, Sepulveda concludes that art. 2 (1) ICESCR and the limitation clause of art. 4 ICESCR are sufficiently flexible tools to counter emergency situations.177 Despite that, under the rules of general international law, the exercise of the ICESCR may be suspended in case of force majeure.178 Accordingly, para. 13 of the Maastricht Guidelines on Violations of ESCR implies that a state’s action or omission due to force majeure does not amount a violation of the Covenant.179 The flexibility of arts. 2 (1) and 4 ICESCR and force majeure may justify an assimilation of the granted adequacy standard to the exceptional circumstances of an emergency. The adequacy standard may be lowered due to lack of resources and time constraints. Nevertheless, the right to be free from hunger shall in no case be suspended.180 As regards the direct relation to the non174 175

176 177 178 179 180

See the details below on pp. 5-66.6 See for instance, art. 4 of the ICESCR’s sister Covenant, the ICCPR, but also instruments aiming at the protection of ESCR, such as the European Social Charter (art. 31). For further details, see De Schutter, International Human Rights Law, pp. 513ff.; Sommarioin, pp. 323-352. Sepulveda, p. 296; Chinkin, The Protection, p. 27. Sepulveda, pp. 296-297. Art. 61 VCLT. For a definition of the term force majeure, see art. 23 (1) of the ILC-Articles. For details, see Sepulveda, pp. 297ff. Such inability to comply must be clearly distinguished from unwillingness of the State to comply (see Sepulveda, p. 298). Cotula/Vidar, p. 73. The Committee on ESCR points out in its General Comment No.12, para. 6, that states still have a ‘core obligation to take the necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of art. 11, even in times of natural or other disasters’.

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derogable right to life enunciated in art. 6 (1) ICCPR, reference can be made to art. 4 ICCPR. Indeed art. 4 (1) ICCPR allows the state parties ‘in time of public emergency which threatens the life of the nation’ to take measures derogating from their obligations […] to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.181 However, its para. 2 specifically prohibits any derogation of the right to life under this provision. The HR Committee clearly indicates that the right to life is the supreme right from which no derogation is permitted even in time of public emergency that threatens the life of the nation.182 Nevertheless, during times of war, the specific set of rules of IHL law is applicable. In that sense, art. 15 (2) ECHR, for instance, explicitly allows deaths that result from lawful acts of war.183 2.4 Restricted Legal Force Not only in respect of the scope, but also of the legal force of the right to food, a distinction must be drawn between the right to be free from hunger and the right to adequate food. Recall that the right to be free from hunger can be interpreted as the core area of the broader right to food – a minimum threshold that must not be undershot. The Committee on ESCR states in General Comment No. 12 that the principal obligation of the state parties is, pursuant to art. 2 (1) of the ICESCR, to achieve progressively the full realisation of the right to adequate food, and imposes an obligation to move as expeditiously as possible towards that goal. It further states that, at the very least, member

181 182

183

Art. 4 (1) ICCPR. HR Committee, General Comment No. 6, 30 April 1982, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 1. See also its General Comment No. 29: Art. 4: Derogations during a state of emergency, 24 July 2001, para. 11 (HRI/GEN/Rev.9 [Vol. I]). Please note: The prohibition of derogation discussed here only applies to art. 4 ICCPR and should not be confused with the peremptory law ( jus cogens). Neither the right to food nor the right to life per se are regarded as part of peremptory international law, but only particular aspects of it (see p. 53). Starvation during armed conflicts is the subject of an in-depth analysis in Part B on pp. 161ff.

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states must ensure the minimum essential level of food required to be free from hunger.184 States have both progressive and immediate obligations to realise ESCR. As noted earlier, art. 2 (1) ICESCR commits the state parties ‘to take steps’ to achieve the full realisation of the rights recognised in the ICESCR ‘progressively’ and ‘by all appropriate means’.185 In contrast to the immediate obligation under art. 2 (1) ICCPR, the commitment referred to in art. 2 (1) ICESCR is weakened by dependence on the available means.186 The steps necessary for full realisation of the right to food are elaborated in detail by the FAO Voluntary Guidelines. At this point it is essential to note that the principle of non-discrimination, pursuant to art. 2 (2) of the ICESCR, is not subject to the limitation of progressive realisation and imposes an immediate obligation to ensure access to food, whatever the level of resources.187 Discrimination in access to food cannot be justified under any circumstances, including low levels of resources.188 Based on art. 2 (2) ICESCR,189 the Committee on ESCR clarifies that […] any discrimination in access to food, as well to means and entitlements for its procurement, on the grounds of race, colour, sex, language, religion, political or other opinion [...] with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.190

184 185 186

187 188 189 190

Committee on ESCR, General Comment No. 12, para. 14. For further information, see para. 10 of General Comment No. 3 on the Nature of States Parties Obligations. Alston/Quinn, provide an analysis of the words and phrases used in art. 2 (1) ICESCR (pp. 165ff.). For in-depth information on the effect of this limitation on the justiciability of ESCR, see Committee on ESCR, General Comment No. 3, para. 9; Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/CN.4/2002/58, 10 January 2002, paras. 32ff.; Schneider, pp. 1ff. This is demonstrated by the wording of art. 2 (2) ICESCR, which markedly differs from art. 2 (1) ICESCR. See also Committee on ESCR, General Comment No. 20, para. 7. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 41. For details, see Sepulveda, pp. 395ff. See also preamble, arts. 1 (3) and 55 of the UN Charter and art. 2 (1) of the UDHR. Committee on ESCR, General Comment No. 12, para. 18. See, in this context, also art. 3 ICESCR. For an in-depth examination of the issue, see Committee on ESCR, General Comment No. 20 on Non-Discrimination in Economic, Social and Cultural Rights (E/C.12/GC/20, 2 July 2009).

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The prohibition of discrimination is also immediately effective, according to art. 26 ICCPR, which grants an independent right to equality that does not refer only to CPR.191 An immediate obligation also applies to the core obligation of the right to food: to provide a minimum essential level of subsistence. Ziegler points out that even when a state fails to meet its minimum core obligation because it lacks available resources, it still has the immediate obligation to demonstrate that every effort has been made to use all existing resources.192 A comparison of the language of art. 11 (1) (‘take appropriate steps’, ‘based on free consent’) with art. 11 (2) ICESCR (‘shall take [...] the measures’, ‘which are needed [...] to ensure’) explains the fundamental difference. These two obligations (prohibition of discrimination and right to be free from hunger) should be made immediately effective and considered justiciable by their very nature.193 An in-depth analysis of the consequences of art. 2 (1) ICESCR on the justiciability of the right to food and the exceptions to the standard of progressive realisation is provided later to clarify concrete obligations in the situations under discussion. But progressive realisation of the right to adequate food remains the general standard. This poses a challenge to effectively monitoring a state’s compliance and impedes the identification of offences.194 The Committee on ESCR monitors the implementation of the ICESCR by its state parties.195 State parties to the ICESCR are requested to submit a periodic report every five years to the UN Secretary General (art. 16 ICESCR). The Committee on ESCR reviews these reports and engages the signatories in a discussion about how to more effectively realise these rights.196 The vagueness of the obligations constrains its supervision and makes it exceedingly difficult to assess compli191 192

193 194

195 196

Nowak, art. 26, paras. 12f. See HR Committee Decisions Broeks, CCPR/C/29/D/172/1984, para. 12; and Zwaan-de Vries, CCPR/C/29/D/182/1984, para. 12. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 42, referring to Committee on ESCR, General Comment No. 3, para. 10. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 45. Chapman, pp. 23-24. See also her article: A ‘Violations Approach’ to Monitoring the International Covenant on Economic, Social and Cultural Rights, Human Rights Dialogue 1.10 (Fall 1997, available at www.carnegiecouncil.org/publications/archive/dialogue/1_10/articles/580.html). See above in FN 8 (p. 21). See arts. 16-24 ICESCR for the relevant procedures. For details, see Eide, Strategies for the Realization of the Right to Food, p. 471; Moore, p. 92.

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ance or identify violations of the right to food. Various approaches have been proposed to resolve this unsatisfactory situation and to effectively monitor government’s compliance.197 The most suitable are addressed later, in discussion of specific forms of deliberate starvation.

197

For an overview see Anderson/Foresti.

II.

Prohibition of Deliberate Starvation Forms of Deliberate Starvation

States can employ deliberate starvation as a means to an end against their own population in various ways. Hunger can be provoked by active measures of a state to prevent (part of) the population from getting access to adequate food (1). Starvation can also be caused by a lack of state activity: This is the case when hunger results from insufficient protection against improper practices of non-state actors (2); or it can be the result of state inactivity, when its people are unable to feed themselves (3). Even in these two cases of deliberate passive behaviour, the state still makes an active decision to turn a blind eye to starvation. Most modern manmade famines combine active and passive attributes.1 The ‘Great Leap Famine’ in China shows clear marks of both commission and omission: The largest famine in human history took place in China during 1959-61.2 Although drought was a contributing factor, this was largely a manmade catastrophe, for which Mao Zedong bears the greatest responsibility. The famine allegedly resulted from Mao Zedong’s Five-Year Plan (‘The Great Leap Forward’), launched in 1958, which focused on economic growth in heavy industry.3 Under this economic program, existing small agricultural collectives were merged into larger people’s communes, and party leaders ordered new, unscientific agricultural techniques be implemented. Livestock and farm implements were brought under collective ownership and private food production was mostly banned. Many peasants were ordered to work on massive infrastructure projects to produce iron and steel.4 A disproportionately large amount of the harvest was seized for state use, for use primarily in urban areas but also for export. These projects, combined with cyclical natural disasters, led to massive drop in grain production and subsequently to a famine.

1 2

3 4

Macrae/Zwi, pp. 6–36. According to Vaclav Smil, the Chinese famine is perhaps the most overlooked cause of 20th century mortality, rating alongside the two world wars as a prime example of public manmade death (ibid., p. 1619). For details about Mao Zedong’s utopian economic strategy, see Yang, pp. 21ff.; Kung/ Lin, pp. 53ff.; Dikötter, pp. 15ff. A chronology of the events is provided at Dikötter, pp. xix ff. For details, see also Yang, pp. 33ff.; Becker; Chang/Halliday, pp. 519ff.; Riskin, pp. 331ff.; Lin/Yang, pp. 125–140.

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There are no precise numbers of casualties, but the best demographic reconstructions indicate that about 30 million people died.5 Another paradigm of a local government violating its own citizens’ right to adequate food through independently-made policy choices is the previous example from Zimbabwe. In Zimbabwe, the government is alleged to have significantly failed to fulfil all three of its obligations: the obligation to respect, protect and fulfil the right to food within its territory. In 2000 and 2001, following years of inequitable land distribution during Zimbabwe’s colonial past, the Zimbabwean government reportedly supported militias in their forcible invasion of farms. The government also expropriated thousands of farms without compensating the owners for the cost of the land.6 As a result of the land reform program implemented in 2001, and a drought in 2002, access to food disastrously deteriorated in the country.7 Zimbabwe’s government allegedly responded to the food shortage by restricting international food aid to the country and denying food to its political opponents.8 The complex interaction of various factors in most famines can be confusing when assembling a human rights analysis of deliberate starvation policies. To clearly illustrate state duties it is most useful to consider these scenarios separately. The three different cases of application correspond to the trichotomy of duties necessary to protect human rights. A joint analysis of all cases would not enlighten, because these obligations are so different in purport, legal force and recognition. Beetham goes so far as to assert that what matters are not categories of rights (ESCR or CPR), but the different types of duties necessary to their protection.9 For the sake of clarity, I analyse each case category separately. The specific focus on starvation practices of a state against its own population does not pose a problem within the present part A of the book, since hu5 6

7

8 9

Smil, p. 1619. Dikötter even speaks of at least 45 million dead (ibid., p. xii). The Chinese official estimate puts the death toll at only 15 million (Kung/Lin, p. 51). Amnesty International, Zimbabwe: Power and hunger – violations of the right to food, 14 October 2004, pp. 10-14, 18-29, available at www.amnesty.org/en/library/info/ AFR46/026/2004/en. FAO, Global information and early warning system on food and agriculture (GIEWS), Food Supply Situation and Crop Prospects in Sub-Saharan Africa No. 3, December 2002, p. 63, available at ftp://ftp.fao.org/docrep/fao/005/y8255e/y8255e00.pdf; Amnesty International, Zimbabwe: Power and hunger – violations of the right to food, 14 October 2004, pp. 34ff.; Zimbabwe Halts Emergency Food Aid, BBC NEWS, 11 May 2004, available at http://news.bbc.co.uk/1/hi/world/africa/3704211.stm. Butcher; Narula, pp. 708-709. Beetham, pp. 51-52. See also the approach by Shue, p. 52.

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man rights principally govern the relationship between the state and the individuals under its jurisdiction.10 These rights protect the individual against the arbitrary use of governmental power. In practice, it might often be difficult to prove that a state uses starvation deliberately and as a means to an end. However, these evidentiary difficulties can be ignored here. The accompanied injustice seems even greater when the state act or omission is carried out deliberately and purposely; but these mens rea elements generally do not have an impact on the interpretation of HRL.11 Nevertheless, in the light of the obligation to take steps by all appropriate means to achieve progressively the full realisation of ESCR (art. 2 [1] ICESCR), it must be determined if starvation was caused intentionally or by the state’s inability to feed its own population. Furthermore, the intention behind an encroachment is relevant to the analysis of the legitimacy: The state may limit the enjoyment of the right to adequate food ‘solely for the purpose of promoting the general welfare in a democratic society’ if it can limit it at all.12

1

Deliberate Starvation Evoked by State Action

The first scenario in which starvation is actively provoked includes all famines that result from active state measures that fall within the bounds of this analysis. These actions include the destruction of foodstuff and the infrastructure required for their production (e.g. burning fields, annihilating livelihoods), as well as any state-sponsored action that does not respect people’s access to food sources or to food assistance.13 It is irrelevant whether such a restriction is based on active measures of the public authorities or on the issuance of legislation.14 The Committee on ESCR declared the following conduct

10

11

12 13 14

Human rights impose obligations on states against individuals in their territory or under their jurisdiction (see ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, p. 180, para. 112). These mens rea elements, however, affect the criminal responsibility (see, for instance, the mens rea elements of the crime of genocide and crimes against humanity discussed on p. 50). Art. 4 ICESCR. See Limburger Principles on the Implementation of the ICESCR, paras. 46-56; Cotula/Vidar, p. 6. A list of examples is provided in Kälin/Künzli, Part 1, para. 61. See e.g. the Taliban’s policy prohibiting widowed mothers from working to feed their families in Afghanistan (see the article by West).

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to be the same as a violation of the right to food that results from ‘the direct action of states’: […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to food; […] the denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or pro-active; […] adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligation relating to the right to food; and […] the failure of a State to take into account its international legal obligations regarding the right to food when entering into agreements with other states or with international organizations.15 This includes restricting existing access to food sources in an implicit and less obvious manner, such as by the laying landmines in agricultural areas or supporting or inciting attacks on foodstuff committed by non-state actors. A famous example of such actively evoked starvation is ‘Stalin’s famine’ in the Ukraine, 1932-34, which caused approximately 7-8 million deaths (about one third of the Ukraine’s population at the time).16 The famine was allegedly created by the Soviet Union to crush Ukrainian nationalism (in particular the Cossack rebellion) and was caused principally by the state’s confiscation of grain from Ukrainian farmers.17 The government of the Soviet Union is reported to have deliberately starved millions of peasants to death by seizing crop and foodstuffs from the agricultural population in 1932.18 A more recent example is the alleged government policy against indigenous residents of the Lower Omo Valley, located in Southern Ethiopia, in 2011/2012. According to Human Rights Watch, soldiers were reported to have regularly stolen or killed cattle.19 In addition, several agro-pastoral communities in the 15 16

17 18

19

Committee on ESCR, General Comment No. 12, para. 19. The Ukrainian famine is also known as ‘Holodomor’. This word is often used by scholars to emphasise the man-made, genocidal aspects of the famine (see inter alia Stark). For details on the famine, see inter alia Bojko/Bednarek; Noack/Janssen/Comerford; Kaufmann, Hunger als Rechtsproblem, pp. 32-33; Dolot. Marcus, pp. 252-253. After over half a century of denial, it is now generally accepted that this famine was deliberately caused as a means to an end (Mace, pp. 78ff.). For further details see Conquest; Dalrymple, pp. 250-284; Tauger, The 1932 Harvest, pp. 70-89 (arguing against the genocide interpretation). See the Human Rights Watch Report about the abuses against the Indigenous Peoples of Ethiopia’s Lower Omo Valley, ‘What Will Happen if Hunger Comes?’, 18 June 2012, available at www.hrw.org/reports/2012/06/18/what-will-happen-if-hunger-comes-0.

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Lower Omo were supposedly informed by state agents that they would have to reduce cattle numbers, settle in one place, and most probably lose access to the Omo River – all of which are critical to their livelihoods and food security.20 Behind this policy is allegedly the ambitious plan of the Ethiopian government to contribute to economic development, inter alia, by constructing Africa’s tallest dam (‘Gibe III’) and creating the conditions for irrigated commercial agriculture. There are serious concerns about the downstream impact of Gibe III on Lake Turkana. About 300,000 agro-pastoralists rely on this lake to sustain their livelihoods.21 There is also the case of the oil-polluted Niger Delta where the multinational oil company Royal Dutch Shell faces claims that its activities threaten, inter alia, the food security of the Ogoni people.22 In this context, the Nigerian government has not remained passive in the face of these private encroachments, but allegedly protected Royal Dutch Shell. The Nigerian government reportedly stopped the Ogoni people from protesting the oil exploration projects in 1993/1994. To this end, the Nigerian security forces reportedly committed atrocities against the Ogoni people, including raping, murdering, beating and making unlawful arrests to further the government’s efforts to end the protesting, and to allow Royal Dutch Petroleum to continue to explore for oil in the region.23 20 21 22

23

See Chapter IV of this Human Rights Watch Report (ibid.) about ‘Food Security and Livelihoods’. See, in particular, Chapter II of this Human Rights Watch Report (ibid.) about ‘Irrigated Agriculture Development Plans in the Lower Omo Valley’. For details, see Avery. UNEP Report about the Assessment of Ogoniland, 2011, available online at http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf; IRIN News Report, Nigeria: IRIN Focus on Ogoni Oil Spill, 13 June 2001 (available at www.irinnews.org/report.asp?Repo rtID=8131&SelectREgion=West_Africa&SelectCountry=Nigeria). See e.g., the decisions by the District Court of The Hague (Judgment of 30 January 2013, A.F. Akpan & anor -v- Royal Dutch Shell plc & anor, Case No. C/09/337050; HA ZA 09-1580), and by the Supreme Court of the USA (Decision of 17 April 2013, Esther Kiobel, Individually and on Behalf of Her Late Husband, Dr. Barinem Kiobel, et al., Petitioners v. Royal Dutch Petroleum Co., et al., No. 10-1491). See also the case before the US District Court of the Southern District of New York (Ken Wiwa, et al. v. Royal Dutch Petroleum Co [Shell], et al., Case 1:96-cv-08386-KMW-HBP) that led to a settlement before the start of the trial. See the decision of the African Commission of Human and Peoples’ Rights of 27 October 2001, Communication No. 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, paras. 5-9; US Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum, Docket Nos. 06-4800cv, 06-4876-cv, 17 September 2010, p. 13. For details on this decision, see Coomans, The Ogoni Case, pp. 749-760.

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In this first chapter, some preliminary remarks on the notion ‘state agency’ are necessary. Subsequently, the obligation of states to respect the right to food is addressed in detail (1.1). Following these general deliberations, the special case of actively undermined humanitarian assistance is discussed (1.2). Support of Private Attacks v. State Agency The classification of active state support of private attacks against food supplies may cause difficulties. To avoid confusion, it is useful to distinguish different levels at which a state might be involved. There is, first of all, the question of direct attribution of private conduct to the state, within the meaning of state agency (i). And there is, for all the cases that cannot be directly attributed to a state, the question of responsibility of the state for its support of private attacks (ii). (i) As indicated above, the notion ‘active state measure’ includes not only active conduct by a state organ or by persons or entities otherwise empowered by domestic law to exercise elements of governmental authority (de jure state agency), but also by private individuals or groups that were acting under the direction, instigation or control of the state (de facto state agency).24 If a state actively supports and controls private attacks that aim to destroy food crops, this behaviour denotes state-sponsored destruction, if the exercised degree of control reaches a certain level.25 In line with the practice established by the ICJ,26 ‘effective control’ must be exercised by the state in order

24 25 26

See De Schutter, International Human Rights Law, pp. 367ff. See above, in the introduction on pp. 12f. If the state is complicit in the activity of the non-state actor, it may incur international responsibility (McCorquodale, Corporate Social Responsibility, p. 388). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judgment, ICJ Reports 1986, pp. 14ff. A general situation of support and dependence does not suffice: ‘The Court has taken the view […] that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras is still insufficient in itself, […] for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State’. (Ibid., para. 115).

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to justify attributing the conduct to the state.27 In this situation alone, the relevant active state measure does not consist of the active support of the attack, but the attack itself, which can be directly attributed to the state. (ii) In all other cases of attacks not directly attributable to a state (only these actions constitute conduct of ‘non-state actors’, as defined in the introduction above), the state could still be held responsible for its own support of such conduct of non-state actors.28 From the human rights perspective, the distinction between the actual destruction of livelihoods of the population and mere assistance in such destruction is only of subordinate importance. The associated restrictions of access to food supplies do not have to reach a certain degree of seriousness or even fall below the minimal nutritional intake to ensure survival (within the meaning of the right to be free from hunger). As we will see, all such active state operations constitute a breach of the obligation to respect the right to food. A case where the state is not involved at all in private practices, but fails to prevent resulting human rights violations from occurring, will be considered in the subsequent Chapter 2 (‘obligation to protect’). 1.1 The Obligation to Respect This subchapter first addresses the abstention duty of states to respect people’s access to food that implies the wrongfulness of active ‘starvation measures’ (a). Second, it examines the customary status of this negative obligation (b). 27

28

More recently, the ICTY rejected the ‘effective control’ test in favour of an ‘overall control’ test (Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment of 15 July 1999, para. 120). However, this case must be distinguished from the Nicaragua case since the latter dealt with the issue of state responsibility, while Tadic dealt with individual responsibility and the question of whether the conflict in question could be characterised as an international armed conflict (see Narula, p. 761). Taking the example of the Nicaragua case, this means the following: ‘The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the complaints relating to alleged violations of humanitarian law by the contras, […] but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras’. (Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. USA], Merits, Judgment, ICJ Reports 1986, pp. 14ff., para. 116).

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a) Negative Obligation Deliberate starvation as a means to an end, resulting from active behaviour of a state, is not specially mentioned in the binding sources of international HRL. However, any action of a member state of the ICESCR (or of any other international treaty granting the right to adequate food) to intentionally hinder the right to food is abusive and, with a view to the obligation not to defeat the object and purpose of a treaty under art. 18 of the Vienna Convention on the Law of Treaties (VCLT),29 forbidden. Such active measures clearly violate the obligation to respect the right to food along with its associated obligations of conduct and of result, as laid down particularly in art. 11 ICESCR; they move in precisely the opposite direction. Because right holders must primarily realise the right to adequate food themselves through their economic and other activities, member states have the duty not to hinder the exercise of those activities. They are therefore obligated to respect existing access to food and must not take any measures that result in preventing such access.30 According to Ziegler the obligation to respect is [...] effectively a negative obligation. This means that states must not take any action that interferes with people’s access to food – such as, for example, destroying their crops or forcibly displacing them from their land or means of subsistence.31 By virtue of its purely negative character, justification on the basis of a realisation over time shall not satisfy the requirements of this specific obligation. The standard of progressive realisation may apply to the obligation to protect and to fulfil the right to food, but compliance with the obligation to respect does not require extensive government resources to implement.32 Ziegler compares the obligation to respect with the negative obligations implied by CPR and considers it justiciable by its very nature.33 With immediate effect, states must abstain from any action that could create famine.34 Even when 29 30 31 32 33 34

VCLT of 23 May 1969, UN Doc. A/ Conf.39/27, UN Treaty Series, Vol. 1155, p. 331. Committee on ESCR, General Comment No. 12, para. 15; Cotula/Vidar, FAO-Study, p. 27. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 44. Kälin/Künzli, Part 1, para. 64. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 45. As regards measures which have already been implemented, however, states arguably need some time to adjust or remove them. A realisation over time within the mean-

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following a less generous interpretation of art. 11 (1) ICESCR, and assuming that the obligation to respect the right to food is also subject to a realisation over time within the meaning of art. 2 (1) ICESCR, governmental starvation policy still impedes the required progress. Instead of following the necessary steps to ‘achieving progressively the full realization of the rights’, such active state measures would move in an opposite direction, taking steps backwards. The target of such measures violates the raison d’être of the ICESCR.35 Accordingly, the Maastricht Guidelines on Violations of ESCR clearly declared that any deliberate retrogressive measure that reduces the extent to which the right to food is guaranteed is a violation of the Covenant.36 Thus, the African Commission of Human and Peoples’ Rights (African HR Commission) found in the above-mentioned case of the oil polluted Niger Delta that [w]ithout touching on the duty to improve food production and to guarantee access, the minimum core of the right to food requires that the Nigerian Government should not destroy or contaminate food sources. [...] The government’s treatment of the Ogonis has violated all three minimum duties of the right to food. The government has destroyed food sources through its security forces and state oil company [...] and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves.37 The obligation to respect the right to food does not only ban measures that cause people to die of starvation. Such behaviour does not just breach the obligation to respect the right to food, but also breaches the obligation to respect

35 36

37

ing of art. 2 (1) ICESCR seems justified in these situations. Legislation into force, for instance, cannot be amended from one day to the next. Committee on ESCR, General Comment No. 3, para. 9. Maastricht Guidelines on Violations of ESCR, Guideline No. 14 (e); less rigorous Committee on ESCR, General Comment No. 3, para. 9 (‘deliberately retrogressive measures [...] would require the most careful consideration and would need to be fully justified [...]’). A detailed examination of the prohibition against taking deliberately retrogressive measures is provided in Sepulveda, pp. 323ff. Sepulveda analyses the practice of the Committee on ESCR and elaborates the conclusion that ‘retrogressive measures are prima facie incompatible with the Covenant and that states have the burden of proving their compatibility’ (ibid. p. 328). Decision of the African HR Commission of 27 October 2001, Communication No. 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, paras. 65-66.

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the right to life, particularly as laid down in art. 6 (1) ICCPR. Defiance of the duty to refrain from intentional and arbitrary taking of life violates the right to life.38 Below that threshold, any measure that could result in preventing individuals’ access to adequate food is forbidden for all the member states of the ICESCR. It is not even necessary that the measure actually trigger starvation: The Special Rapporteur of the Commission on Human Rights classified, for instance, the prohibition of food supply to 22,000 people who took refuge in the Embassy of the Philippines by the Iraqi authorities during their occupation of Kuwait as a violation of the right to adequate food, even though food could still be brought to the premises of the Embassy by disregarding this prohibition and nobody was actually going hungry.39 It should still be recalled that only the minimum core content of the right to food (the right to be free from hunger) can never be subject to restrictions. As emphasised above, the right to adequate food might generally be restricted by virtue of art. 4 ICESCR, if certain conditions are satisfied (legality, legitimacy and proportionality).40 Restrictions on the enjoyment of the right to adequate food must be ‘solely for the purpose of promoting the general welfare in a democratic society’.41 This requirement should be strictly applied because long-term reduction of the adequacy level can have a serious effect on community development. Restrictions on the adequacy standard are not only contrary to the requirement that available food is acceptable within a given culture, but also adversely affect the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals as demanded by the Committee on ESCR.42 The UN Fact-Finding Mission on the Gaza Conflict demonstrates that changes in diet patterns are likely to prejudice the long-

38

39

40 41

42

See Ramcharan, The Concept and Dimensions of the Right to Life, p. 17; Sepulveda, pp. 140-141. See also the decision by the Inter-American Court, Villagran Morales et al. v. Guatemala, Judgment of 19 November 19999, Series C No. 77, para. 144. Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, prepared by Walter Kälin, Special Rapporteur of the Commission on Human Rights, in accordance with Commission Res. 1991/67, UN Doc. E/CN.4/1992/26, 16 January 1992, para. 222. De Schutter, International Human Rights Law, pp. 288ff. See, in the specific case of the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their ESCR, resulting from Israel’s construction of the wall (ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, pp. 192-193, paras. 136-137). Committee on ESCR, General Comment No. 12, paras. 8-9, 11.

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term health and nutrition of the population.43 This diminishes the healthy workforce and impedes the economic performance of the affected community.44 In the example of the blockade of the Gaza Strip by the Israeli government, the Fact-Finding Mission observed that the blockade had a negative effect on the state of economy, employment and family livelihoods in the Gaza Strip due to the restrictive measures that the Israeli government implemented.45 The Mission also reported that the restrictions significantly weakened the health of the inhabitants and caused chronic micronutrient deficiencies among the population, particularly among children.46 Although deliberate lowering of existing food standards is less apparent, it is still pursued as a strategy to achieve a political end in practice.47 Such positive measures by a state to deliberately restrain adequate food always imply a restriction that is on no account compatible with the nature of the right to food and therefore contravenes the conditions established in art. 4 ICESCR. In practice, active state measures that deprive individuals of their right to access adequate food often accompany discrimination. An example is the Zimbabwean government’s Grain Marketing Board, which monopolised the purchase and distribution of grain and allegedly pursued discriminatory policies by denying opposition party supporters access to food.48 When discrimination in access to food and to the means for its procurement are grounded in political opinion and are intended or have the effect of nullifying or impairing the equal enjoyment or exercise of ESCR, this violates art. 2 (2) in connection with art. 11 ICESCR.49

43

44 45

46 47

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Report of the UN Fact Finding Mission on the Gaza Conflict, Human Rights in Palestine and other Occupied Arab Territories (hereafter: ‘Goldstone Report’), A/HRC/12/48, 15 September 2009, para. 1233. The impact of nutritional imbalances on health is analysed by Blackburn/Siddiqi, pp. 319-328; Webb/Thorne-Lyman. Blackburn/Siddiqi, p. 320. Goldstone Report, paras. 1216ff. Deliberations about the legal status of the Gaza Strip and the classification of this specific conflict are not covered within this analysis. This extraordinary example is only used to show the impact of such restrictions on the population. Goldstone Report, paras. 323ff, and para. 1233 with exact figures. In the example of the high Salt Tax during the British Rule in India, Moxham demonstrates the serious damage to health caused by the lack of salt of the Indian population (ibid., pp. 2270-2274). Amnesty International, Zimbabwe: Power and hunger – violations of the right to food, 14 October 2004, pp.  38-39, available at www.amnesty.org/en/library/info/ AFR46/026/2004/en; Narula, p. 709. See Golay, The Right to Food and Access to Justice, pp. 14-15.

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Unequal access to food between men and women may further violate art. 3 ICESCR.50 The principle of non-discrimination is not subject to the limitation of progressive realisation. It must be ensured immediately, regardless of the level of available resources. Discrimination in access to food can therefore not be justified under any circumstances.51 Frequently, access to food is also indirectly impeded by gender-based violence. In rural areas, women regularly leave their homes to collect wood or other cooking fuel essential for their survival. In dangerous regions, women face the daily risk of rape during their search for firewood.52 For their own survival, and that of their families, they must go on these dangerous journeys and accept the risk of violence. In summary, all member states have the duty to abstain from denying or limiting equal access for all persons to the enjoyment of the right to food.53 The Challenge of Assessing Compliance Monitoring the progressive realisation of ESCR is demanding. In the case of active state measures, the violation is yet usually not difficult to assess. In comparison to the challenge of evaluating a state’s progress in furthering the right to food, active violations are more evident. De Schutter observes that courts are generally well-equipped to enforce the ‘obligation to respect’.54 Nevertheless, the problem persists that malicious tactics often remain hidden from the international community. It is hardly conceivable that a malevolent state will indicate abusive action in its submitted periodic report to the monitoring Committee on ESCR. If the Committee gains knowledge, it may take different approaches to identifying an infringement of the right to 50 51 52

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See also arts. 2 (1) and 3 ICCPR, for coverage of discrimination in the context of CPR. Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 41. See e.g. in Uganda (‘Uganda: Better Stoves Curb Risks For Rural Women’, Howard/Bizzarri, WFP, 20 September 2010, available online at www.wfp.org/stories/uganda-betterstoves-curb-risks), or in Congo (‘In Congo, Women Face Impossible Choice: Risk Rape, or Go Hungry’, Marcy Hersh, Refugees International, 31 January 2013, available online at www.refintl.org/blog/congo-women-face-impossible-choice-risk-rape-or-go-hungry). See Sepulveda, pp. 397-398 (pointing out on p. 398 that states must, upon becoming a party to the Covenant, refrain from implementing any practice or policy with a discriminatory impact in the enjoyment of the substantive rights). Report by the Special Rapporteur on the Right to Food to the GA, Olivier De Schutter, A/68/288, 7 August 2013, para. 12 (indicating inter alia the High Court of South Africa [Cape of Good Hope Provincial Division], Case of Kenneth George and Others v. Minister of Environmental Affairs and Tourism, Case EC1/05, 2007).

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food. For active state measures that impede the right to food, the ‘violations approach’ proposed, inter alia, by Chapman seems the most suitable: She recommends departing from the tricky ‘progressive realisation’ standard used to assess governments’ compliance with the ICESCR provisions. According to her approach, negative compliance is indicated when harmful measures are identified and signal violation of the ICESCR.55 Similarly, Roth explains that ‘the nature of the violation, violator, and remedy is clearest when it is possible to identify arbitrary or discriminatory governmental conduct that causes or substantially contributes to an ESCR violation’.56 As we will see in the third chapter, these three dimensions are muddied when the ESCR shortcoming is largely a problem of distributive justice.57 b) Universality – Customary International Law It must be determined if states that have not ratified the ICESCR or other international treaties guaranteeing the right to food are still obliged to respect the right to food and to refrain from active measures that hinder people’s access to food based on customary international law. Even though this applies to a minority of states, these are often states in which food insecurity is high (for instance, Myanmar, Botswana or Haiti).58 In contrast to the debatable positive duties, there is a widely held moral conviction that we have a general negative duty not to harm others. This obligation is rooted both in liberal categories of politics, which prioritise non-interference, and in a basic moral intuition about what we can reasonably be held responsible for.59 State action that prevents individuals from accessing food also usually restricts their access to essential food (food sufficient to ensure their freedom from hunger), and is likely to endanger people’s lives. Any arbitrary deprivation of livelihood, which leads (or could lead in the future) to death by hunger, constitutes both a violation of the right to be free from hunger, and a violation of the right to life.60 The right to life is one of the most widely recognised 55

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Chapman, pp. 23-66. Anderson and Foresti, however, criticise this approach and point out that this approach has a punitive tone, rather than a facilitative one (Anderson/ Foresti, p. 2). Roth, p. 69. Ibid., p. 69. See below on pp. 117ff. By December 2013, 161 states were for instance participating the ICESCR (a list of all participant states is available at http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en). Beetham, pp. 51-52. Alston, International Law and the Human Right to Food, p. 21; Kaufmann, Hunger als Rechtsproblem, p. 93; Ramcharan, The Concept and Dimensions of the Right to Life, p. 6.

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human rights and is generally accepted as customary international law. The prohibition of active state measures that deprive the population of food necessary to life is thus part of customary law. Active deprivation of food even constitutes a breach of jus cogens insofar as it is covered by the prohibition of genocide or crimes against humanity.61 Instances in which states actively hinder people’s access to food without infringing on the right to be free from hunger and the right to life are very rare. For the sake of completeness, however, it is useful to briefly address less severe deprivations that restrict the adequate food standard, but still leave sufficient basic food staples for the survival of the population. Such policies violate the right to adequate food as soon as deprivation reduces access to food to an inadequate level. The adequate standard is based on prevailing social, economic, cultural, climatic and ecological conditions.62 The guarantee of an adequate standard of food is – outside of the binding human rights treaties – established in a plethora of UN Resolutions and Declarations that represent virtually universal acceptance. Nevertheless, the prohibition of measures that confine people’s right to adequate food is not part of customary law. I argue that this gap can be filled by demonstrating the effect of these policies on the right to life. State measures that limit the variety of available food may not have the effect of people starving, but can put the affected people under very difficult circumstances. I have already explained with the example of the Gaza blockade, that such restrictions can have a negative impact on the health of the population and cause chronic micronutrient deficiencies. In the long term, this level of deprivation arguably impedes the right to life. If this harm is actively caused, acceptance of such policies contravenes moral conviction: It is important to remember that the customary status of the right to adequate food is usually denied because states are reluctant to accept a positive duty to meet this standard and deliver adequate food.63 This is also apparent in the reaction of the state community towards active starvation practices. When the Israeli government, for example, implemented restrictive measures in the Gaza Strip, it provoked international outrage. Several UN

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See pp. 53f. Committee on ESCR, General Comment No. 12, para. 7. Beetham, p. 51; Narula, pp. 780ff.; Kaufmann, Hunger als Rechtsproblem, pp. 166ff. In line with this goes, for instance, the position by the USA as regards the delivery of food aid during the 19th Session of the HRC on the Resolution on the Right to Food (available at http://geneva.usmission.gov/2012/03/22/us-joins-consensus-on-hrc-Res.-on-theright-to-food/).

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bodies expressed their disapproval.64 The UN Security Council (SC), for instance, expressed ‘grave concern [...] at the deepening humanitarian crisis in Gaza’ and emphasised the need to ensure sustained and regular flow of goods and people through the Gaza crossings. It called for the ‘unimpeded provision and distribution throughout Gaza of humanitarian assistance, including food, fuel […]’.65 This reaction justifies my affirmative approach to a customary law prohibition of such active measures. In most such cases, it is also possible to resort to the principle of non-discrimination, which has acquired the status of customary law. State measures that discriminate in access to food or in means and entitlements for its procurement are prohibited. 1.2 Special Case: Actively Undermining Humanitarian Assistance There is a negative duty not to hinder people’s access to food, and a similar duty not to hinder access to humanitarian assistance. The general prohibitions also apply to humanitarian assistance, but special considerations adhere to the specific features of this particular application. Humanitarian assistance may be diverted and used for political gain. Food aid may be manipulated, since delivery of humanitarian assistance is a tool to ‘win the hearts and minds’ of the population.66 During natural or manmade disasters, the population is particularly vulnerable and protection of the right to food vital for their survival. A well-known example of a state deliberately blocking access to food in this fashion was Myanmar’s refusal of foreign humanitarian assistance after Cyclone Nargis in May 2008 that left an estimated 1.5 million people in affected areas at risk of starvation and disease.67

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Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, Resulting From the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance (A/ HRC/15/21, 27 September 2010, paras. 37-44); Goldstone Report, paras. 1216ff.; Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (hereafter: ‘Palmer Report’), July 2011, p. 68, para. 152. SC Res. 1860 (2009) of 8 January 2009. See e.g. Williamson. Ertharin Cousin (executive director of the UN World Food Programme [WFP]) also noted, in her lecture on ‘Delivering Food Assistance in a Shrinking Humanitarian Space’ (for the Department of International Development, LSE on 17 September 2013) that food is often abused in practice to manipulate the loyalties of affected people. See, e.g. ‘U.N. Pressures Myanmar to Allow Aid’, New York Times, 9 May 2008, available online at www.nytimes.com/2008/05/09/world/asia/09myanmar.html?pagewanted=all. This case will be explained in more detail on pp. 90f.

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In practice, interfering with humanitarian assistance is not necessarily mala fides. Often, when a state hinders humanitarian assistance, it does not intend to starve the population (for example, when it imposes import restrictions or custom duties on relief goods for economic reasons). The specific focus of the present analysis narrows my examination to interference deliberately carried out as a means to an end. But I have emphasised that the purpose of a restriction is principally not relevant to this human rights analysis. Like hindering access to food, undermining humanitarian assistance generally infringes on human rights standards. The intent of interference is only relevant as far as it legitimises limitations: The state may limit the enjoyment of the right to adequate food ‘solely for the purpose of promoting the general welfare in a democratic society’.68 Some human rights instruments directly address the (ab-)use of humanitarian assistance for political goals and explicitly prohibit the use of such assistance to promote non-humanitarian goals. The Operational Guidelines on the Protection of Persons in Natural Disasters by the Inter-Agency Standing Committee (IASC; hereinafter: IASC Guidelines69), for instance, stress that ‘humanitarian assistance should not be used for purposes other than humanitarian, e.g. to achieve political goals or to divert goods to persons not in need of them’.70 The Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief refer to the responsibility of assisting actors to ensure that assistance is provided without political, religious or commercial motives.71 Principle 24 (2) of the Guiding Principles on Internal Displacement similarly stipulates that humanitarian assistance to IDPs shall not be divert68 69

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Art. 4 ICESCR. See Limburger Principles on the Implementation of the ICESCR, paras. 46-56; Cotula/Vidar, p. 6. The IASC Guidelines were prepared by the Special Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, and approved by the IASC (Washington, D.C., Brookings-Bern Project on Internal Displacement, originally from 2006, revised January 2011). The IASC is an inter-agency forum for coordination, policy development and decision-making that involves the key UN and non-UN humanitarian partners. The IASC was established in June 1992, in response to GA Res. 46/182 on strengthening humanitarian assistance. The latest version of the IASC Guidelines is available online at www.brookings.edu/~/media/research/files/reports/2011/1/06%20 operational%20guidelines%20nd/0106_operational_guidelines_nd.pdf. General Principles, II.4. Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (adopted at the 30th International Conference of the Red Cross and Red Crescent, held in Geneva from 26 to 30 November 2007), art. 4 (2) (a). See also GA Res. 46/182 of 19 December 1991, Annex, para. 5.

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ed, in particular for political or military reasons. The FAO Voluntary Guidelines similarly state that in the context of natural and human-made disasters ‘food should never be used as a means of political and economic pressure’.72 In this chapter, first I argue for a definition of the term ‘humanitarian assistance’, upon which the following analysis will be based (a). Second, I present the related duties of omission of states and illustrate them with examples. The question of whether victims of disasters have a specific right to humanitarian assistance in international law will be discussed briefly, since this is relevant to the elaboration of the connected negative obligations of states. Consistent with the present case study in this section, I address the negative dimensions of the right to humanitarian assistance in terms of a negative obligation to not hinder the delivery of such assistance (b). Third, the specific duties of the states are elaborated more precisely to demonstrate the practical problems faced by aid agencies (c). The deliberations described above, about hindering access to food in general, also reference existing customary law.73 a) Defijinition of the Term ‘Humanitarian Assistance’ According to the Institut de Droit International (IDI), ‘humanitarian assistance’ can be defined as ‘all acts, activities and the human and material resources for the provision of goods and services of an exclusively humanitarian character, indispensable for the survival and the fulfilment of the essential needs of the victims of disasters’.74 This definition covers humanitarian assistance to victims of any kind of disaster, including victims of armed conflicts.75 In situations of armed conflicts, the specific provisions of IHL are 72

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Guideline 16.1. See also the Guiding Principles on the Right to Humanitarian Assistance by the Council of the International Institute of Humanitarian Law (‘IIHL-Principles’, San Remo, April 1993, printed in International Review of the Red Cross [IRRC], Vol. 33, No. 297, December 1993, pp. 519-525), Principle 8. See pp. 74ff. See art. I (1) of the Resolution on Humanitarian Assistance adopted by the IDI, 2 September 2003, Bruges Session (hereafter: ‘Bruges Resolution’). For details see Vukas, para. 5. There is great ambiguity in the use of the terms ‘humanitarian assistance’, ‘humanitarian aid’, ‘food aid’ and ‘food assistance’. Within the scope of this analysis, the terms ‘humanitarian assistance’ and ‘humanitarian aid’ are used as synonyms. The terms ‘food aid’ and ‘food assistance’ are used as umbrella terms; their wider scope does not only include support to respond to emergency food situations, but also to everyday food needs of developing countries (for details, see below on pp. 133ff.). This concept for instance underlies the former 1999 Food Aid Convention (see the definition used in its art. 1). It is not explicitly defined in the current 2012 Food Assistance Convention

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applicable that establish an explicit duty not to hinder the passage of humanitarian consignments for affected populations.76 I here focus on relief action for victims of disasters of natural origin or man-made disasters of technical origin.77 In practice, these last two categories are often combined; the 2011 Tsunami in Japan, for example, was caused by a severe earthquake that, in turn, caused a series of nuclear accidents (primarily the meltdowns at three reactors in Fukushima), which led to an immense nuclear disaster.78 International humanitarian assistance is often offered when the magnitude and duration of emergencies exceeds the response capacity of affected countries. Although the term ‘humanitarian assistance’ generally includes the provision of food, clothing, medicine and other humanitarian assistance,79 this discussion is limited to the provision of necessary food and food-related materials by relief operations. The criteria for inclusion is that assistance must be intended to feed the population of the interfering state.80 The source of the relief goods is irrelevant, whether domestic or international. Relief operations include the direct delivery of food as well as assistance provided in the form of cash and vouchers for people in need (that are gradually replacing direct delivery of food to save transportation and storage costs).81 Unimpeded access to external assistance should be ensured, but it often is not. The Democratic People’s Republic of Korea (DRK) may offer an example of a regime that hinders humanitarian assistance as a means to an end, though its seclusion and isolation make it difficult to obtain exact data about food

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anymore, but is implied in its preamble (‘to respond to emergency food situations and other food needs of developing countries’). IHL is only applicable in natural disaster settings insofar as civilians under the control of a party to the armed conflict are affected (for details see below on pp. 167ff.). In the definition used in art. I (2) of the Bruges Resolution, a famine is described as a natural disaster. A famine might indeed be labelled as a disaster; however, I will show in this paragraph that it is in many cases rather a man-made disasters than a purely natural one. An overview of the relevant definitions is provided by Annex 1 of the Memorandum of the ILC, Protection of Persons in the Event of Disasters, UN Doc. A/ CN.4/590/Add.1, 26 February 2008. For details, see www.guardian.co.uk/world/japan-earthquake-and-tsunami. Cf. Military and Paramilitary Activities in and against Nicaragua (Merits), Judgment, ICJ Reports 1986, para. 243. Cf. the focus of this analysis on internal starvation policies. See IRIN, Analysis by Jaspreet. For details about the ‘Cash and Voucher Programme’ of the world’s largest food aid agency WFP see www.wfp.org/cash-and-vouchers.

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insecurity within its borders.82 A rationing system is in place,83 and the government allegedly blocked and restricted foreign humanitarian assistance after major flooding in 1995.84 When humanitarian deliveries finally came through, the DRK is said to have cut its commercial imports of food, rather than accept the aid as a supplement to the food supply.85 The regime’s strict control of the food distribution system has posed further obstacles to aid. Reportedly, all food – including food from humanitarian assistance of the international community – was diverted into the centralised public distribution system.86 Military personnel, Communist Party members and those thought to be most loyal to the regime, purportedly received the largest allotments, while the population of the capital Pyongyang received the minimum ration that would ensure their survival. The rest of the country received much less 82

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There are still numerous reliable sources, as for instance the Reports of the Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea (inter alia UN Doc. A/HRC/22/57, 1 February 2013; UN Doc. A/64/224, 4 August 2009). For an overview of the different human rights publications about the DRK, see the database by US Committee for Human Rights in North Korea (available at http:// hrnk.org). Devereux indicates that from 1995 to 1998 around 2.8 to 3.5 million people had died from starvation or hunger-related illness in the DRK (Devereux, Famine in the Twentieth Century, pp. 6, 33). For an overview of the different stages of the famine see Dando, North Korean Famine, pp. 252-267. Apparently, the situation has not improved as continued hunger and undernutrition still persist today (see e.g. the Resolution adopted by the GA on the Situation of Human Rights in the Democratic People’s Republic of Korea, UN Doc. A/RES/67/181, para. 3, 20 March 2013; the background information on WFP’s operation in the DRK available at www.wfp.org). See also the Report by the OCHA, ‘DPRK: More than 6 million people need food assistance’, 21 October 2011; Hyun-uk; White Paper on Human Rights in North Korea, Korea Institute for National Unification, 2009; ‘A matter of survival: the North Korean Government’s control of food and the risk of hunger’, Human Rights Watch, Vol. 18, No. 3, New York, 2006. For recent media coverage see, inter alia, The Telegraph Online, ‘North Korea faces famine: “Tell the world we are starving”’, Peter Foster, 16 July 2011; Evans B. Amnesty International Report, Starved of Rights: Human Rights and the Food Crisis in the Democratic People’s Republic of Korea, January 2004, pp. 16ff., available at www. seoultrain.com/content/resources/asa2400304.pdf. These restrictions still continue (see e.g. ‘A matter of survival: the North Korean Government’s control of food and the risk of hunger’, Human Rights Watch, Vol. 18, No. 3, New York, 2006, pp. 12ff.). Food Crises in North Korea, Gary Feuerberg, Epoch Times Washington, D.C., 9 April 2007. See Human Rights Watch, A matter of survival: the North Korean Government’s control of food and the risk of hunger’, New York, 2006, pp.19ff.; Noland/Robinson/Wang, p. 747. For details about the Public Distribution System, see Haggard/Noland, pp. 51ff.

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or no aid at all. The central government is thought to have denied access to imported food to populations not seen as critical to the survival of the state.87 The then supreme leader of the country, Kim Jong-il, may have accepted the death of over a million citizens as necessary collateral damage.88 After evidence of this large-scale misuse of food aid came to light, many relief organisations ceased their support in the late 1990s and early 2000s.89 b) The Right to Humanitarian Assistance Before analysing the duties of states not to hinder humanitarian assistance, it is necessary to briefly determine if human rights, and the right to food in particular, even apply in times of disaster.90 During grave and catastrophic events, a temporary derogation of most human rights may be justified.91 However, access to food must be protected during emergencies, since derogation worsens, rather than resolves, conflict situations.92 According to the Committee on ESCR, the right to life and the right to food are equally applicable in the case of natural or human-made disasters.93 Art. 4 (2) ICCPR explicitly makes that clear in reference to the right to life. Young explains that non-derogable rights ‘are those most likely to be violated in emergencies, those particularly important to protect the dignity of individuals and to guaranteeing their survival in situations of emergency’.94 The ICJ determined in its Advisory Opinion on the Wall in the Occupied Palestinian Territory that the obligations of governments, with regards to ESCR, continue to apply in times of armed conflict, where often even more extreme conditions prevail

87 88 89

90 91

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Natsios, p. 8. See also his interview in the PBS-Television Report of 11 June 1997, ‘The Newshour: Starvation in North Korea’. Lee, p. 190. Plümper/Neumayer, p. 12. The blocked foreign food aid in the context of sanctions against the DRK for its nuclear program, in contrast, is another topic which goes beyond the scope of this analysis (for information, see e.g. Haggard/Noland, pp. 38ff.). See the deliberations on emergency exceptions, above on pp. 57f. A detailed analysis of the right to food in emergencies is provided by Cotula/Vidar. Young, p. 108. For details, see HR Committee, General Comment No. 29, para. 3 (emphasising that not every catastrophe qualifies as a ‘public emergency which threatens the life of the nation’); Sommarioin, pp. 323-352. See also ECtHR, Case of Lawless v. Ireland (No. 3), Judgment (Merits), 1 July 1961, Application No. 332/57, Series A., No. 3, paras. 2330. Young, p. 109. Committee on ESCR, General Comment No. 12, para. 6; see also Sepulveda, p. 296; Cubie, p. 180; art. II (1) Bruges Resolution. Young, p. 109.

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than in natural disasters.95 When considering deliberate, active hindrance of humanitarian assistance as a means to an end, derogation of a human right must not only be proportionate, but also strictly connected to the goal of resolving the emergency.96 In addition, restrictions on the enjoyment of the right to food must meet a condition laid down by art. 4 ICESCR: It is hard to image a situation in which deliberate active hindering of humanitarian assistance is carried out ‘solely for the purpose of promoting the general welfare in a democratic society’97 and thus meets the ‘requirements of morality’.98 There is unlikely to be a situation in which the reduction or blockade of humanitarian assistance to below the adequacy level is justified pursuant to art. 4 ICESCR. When a state of emergency persists for a long period, subsistence below the adequacy level may endanger the health and fail to meet the minimum nutritional needs of the population. During an emergency, a state may be unable to provide humanitarian assistance to an adequate standard, but the emergency situation

95

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98

See ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, pp. 177ff, paras. 105ff. For the question of derogation and restrictions in times of national emergency, see also ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, pp. 239-240, paras. 24-25. See also art. 8 of the Draft Articles on the Protection of Persons in the Event of Disasters provisionally adopted by the ILC (printed in the ILC Report, UN Doc. A/68/10, sixty-fifth session, 6 May-7 June and 8 July-9 August 2013, pp. 73ff.). Young, pp. 110-111. Going back to the example of Israel’s land crossing policy that determines the amount of goods that can reach Gaza, the HR Committee emphasised that state parties to the Covenant ‘may in no circumstances invoke art. 4 of the Covenant as a justification for acting in violation of [...] peremptory norms of international law, for instance by [...] by imposing collective punishments [...]’ (HR Committee, General Comment No. 29, para. 11 [HRI/GEN/Rev.9, Vol. I]; see also the Report of the International Fact-Finding Mission to Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting From the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, 27 September 2010, UN Doc A/HRC/15/21, para. 72). See, in the specific case of restrictions on the enjoyment of ESCR by the Palestinians living in the territory occupied by Israel, as a result of Israel’s construction of the wall: ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, pp. 192-193, paras. 136-137. See the argument, during the drafting of the ICESCR, by the US representative, Mrs Roosevelt (Summary Record of the 306th meeting of the UN Commission of Human Rights, 6 June 1952, E/CN.4/SR.306, p. 8). For details see Müller, p. 572.

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does not justify actively hindering provision of adequate food to the people in need.99 To determine if there is an obligation not to hinder the delivery of humanitarian assistance, we must first determine if a right to humanitarian assistance exists. If it does, then this duty of omission is necessarily a negative component. The question of an existing human right to humanitarian assistance in peacetime is complex. Despite receiving significant attention from academia, the positive law on the subject is not clear.100 The issue of humanitarian assistance for civilians in situations of armed conflict is anchored in binding IHL. But there are currently no legally binding international treaties that explicitly cover humanitarian assistance for civilian populations after natural or human-made disasters.101 The ICESCR does not specifically address the provision of humanitarian assistance and thus does also not explicitly refer to a corresponding obligation of states not to hinder humanitarian assistance.102 However, the right to food may imply that international humanitarian assistance is covered by certain obligations. Art. 2 (1) ICESCR explicitly states that each state party to the Covenant undertakes to take steps individually, as well as ‘through international assistance and co-operation [...] to the maximum of its available resources’.103 A state’s ‘available resources’ are not limited to its internal resources, and extend to those made available by the inter99

100

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As regards the example of hindered food aid in Gaza, the President of the SC reiterated its grave concern at the humanitarian situation in Gaza and stressed the need for sustained and regular flow of goods to Gaza as well as unimpeded provision and distribution of humanitarian assistance throughout Gaza (S/PRST/2010/9, 1 June 2010). A good review of the different views on the existence of a right to humanitarian assistance is provided in A/CN.4/590, paras. 257-258, and contains a wide selection of literature references. Detailed analysis is provided by Dinstein, The Right to Humanitarian Assistance, pp. 77ff.; Fisher, pp. 345ff.; Cotula/Vidar, particular pp. 53ff. See, also, inter alia, Macalister-Smith, The Right to Humanitarian Assistance, pp. 224–225; id., Le droit à l’assistance humanitaire; Kalshoven; Hardcastle/Chua, pp. 589-609; Salcedo; Creta, pp. 353-379. Cubie speaks of an existing ‘legal lacuna’ in that field (Cubie, p. 189). See also Hardcastle/Chua, para. 4; Fisher, pp. 347-348; A/CN.4/590, paras. 257-258. Only two human rights conventions directly address disaster relief: the International Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 by GA Res. A/RES/61/106, Annex, art. 11, and the African Charter on the Rights and Welfare of the Child of 1990, entered into force on 29 November 1999, arts. 23 (1), 23 (4). See also the UN Declaration on the Right to Development which declares that states have a duty to solve international problems of an economic, social, cultural or humanitarian nature through international co-operation (preamble), and which re-

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national community through international cooperation and assistance.104 By implication, a state must not turn down or hinder external food aid in cases of need, if the aid is delivered in accordance with the principles of humanity, neutrality, impartiality and independence.105 If a state’s own resources are insufficient to ensure food security, the refusal of a government to accept foreign humanitarian assistance infringes the right to food.106 In General Comment No. 12, the Committee on ESCR determined that ‘prevention of access to humanitarian food aid in internal conflicts or other emergency situations’ is a violation of the right to food.107 The international regulation and operation of humanitarian assistance should be clarified.108 Since 2006, the International Law Commission (ILC)109 has engaged with this issue and is drafting articles on the protection of persons in the event of disasters, with a focus on natural disasters.110 Authoritative soft-law documents have been developed over the past twenty years, which cover the provision of humanitarian assistance in response to natural and human-made disasters.111 The GA ‘Resolution on Humanitarian Assistance to Victims of Natural Disasters and Similar Emergency Situations’ is

104 105

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quests states to just take steps both individually and collectively (arts. 3-4, UN Doc. A/ RES/41/128, 4 December 1986). The Limburger Principles, para. 26. These principles are, inter alia, listed in GA Res. of 19 December 1991, UN Doc. A/ RES/46/182, Annex, para. 2. See also SC Res. of 28 April 2006, S/RES/1674 (2006), para. 21. See Kaufmann, Hunger als Rechtsproblem, p. 70. For more details about the denial of humanitarian access, in particular, see Labonte/ Edgerton, pp. 39-57. The duty of a state to allow foreign humanitarian assistance, and its positive obligations, will be examined in depth on pp. 150ff. Committee on ESCR, General Comment No. 12, para. 19. See also Kälin/Künzli, Part 1, para. 62. UN Doc. A/CN.4/590 gives details about the numerous attempts at codifications that have been made without success in FN 11. The ILC was established by the GA in 1948 to promote ‘the progressive development of international law and its codification’ (GA Res. A-RES-174[II], 21 November 1947). See Chapter VI of the Report from the sixty-fifth session of the ILC (A/68/10; 6 May7 June and 8 July-9 August 2013). All documentation of the ILC’s work on the protection of persons in disasters is available at www.un.org/law/ilc/. Giustiniani critically appraises these in ibid., pp. 65-84. See, in detail, Cubie, pp. 177–215. The Disaster Law Database of the International Federation of Red Cross and Red Crescent Societies is also helpful, available online at www. ifrc.org/en/publications-and-reports/idrl-database. For a complete list of the treaties relevant to the topic or aspects thereof, see A/CN.4/590/Add. 2, Annex II.

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an example.112 Even though these documents do not create binding obligations, their non-binding normative standards directly influence the actions of states.113 The International Federation of Red Cross and Red Crescent Societies (IFRC) provide further guidance in situations unrelated to armed conflict.114 The Bruges Resolution explicitly entitles the victims of disaster to request and receive humanitarian assistance.115 This right to humanitarian assistance implies that the state is obligated, a contrario, not to hinder those people’s access to humanitarian assistance. Of particular interest is the right, established here, of foreign states to offer and provide – subject to the consent of the affected states – humanitarian assistance to victims of disasters.116 Art. IV (1) makes it clear that offers of humanitarian assistance are not to be considered unlawful interference in the internal affairs of the affected state, if they have an exclusively humanitarian character.117 Affected states are thus obligated not 112

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GA Res. 43/131, UN Doc. A/RES/43/131, 8 December 1988. See also Annex to Res. 46/182, A/RES/46/182, 19 December 1991, containing the Guiding Principles on Humanitarian Assistance in the Field of Natural Disasters. For a listing of the relevant Resolutions and their content, see the adjuvant ‘Compilation of UN Resolutions on Humanitarian Assistance’, OCHA, Policy and Studies Series 2009, pp. 5-11. Cubie, pp. 181ff. See, inter alia, ‘the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief’ and ‘the Principles and Rules for Red Cross and Red Crescent Disaster Relief’ adopted by the 26th International Conference of the Red Cross and Red Crescent in 1995. The National Red Cross and Red Crescent Societies do not just assist victims of armed conflicts, as provided in the Geneva Conventions, but also victims of natural disasters and other emergencies (see art. 3 [3] of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006). The significance of the IFRC is affirmed by the Report of the UN Secretary-General on ‘Strengthening the coordination of emergency humanitarian assistance of the United Nations’, UN Doc. A/57/77–E/2002/63, 14 May 2002, para. 23: ‘The International Federation of Red Cross and Red Crescent Societies is taking the lead in the development of an international disaster response law.’ Art. II (2). Art. V of the Bruges Resolution even refers to a duty to offer humanitarian assistance, to the maximum extent possible, to the victims in states affected by disasters, except when such assistance would seriously jeopardise their own economic, social or political condition. Reflections on an existing international responsibility to protect, and the duty of a third state to provide food aid to people in need, are beyond the scope of this analysis. See also ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judgment, ICJ Reports 1986, p. 124, para. 242.

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to arbitrarily and unjustifiably reject a bona fide offer exclusively intended to provide humanitarian assistance, and cannot refuse access to the victims.118 c) The Specifijic Abstention Duties I outlined the abstention duties that can be derived from art. 11 ICESCR. I will further apply the existing soft law instruments to interpret and further specify these standards. Positive actions like hijacking food convoys, extortion, delaying the import of food intended for distribution to the population (as long as it is attributable to the government) represent clear violations of the right to food. The obstruction does not need to be violent; it can be carried out through legislation. Any form of harassment or restriction imposed on international agencies engaged in food or nutrition programmes goes against the right to food.119 The distribution of food aid might be hindered by a state that does not explicitly refuse aid, but instead restricts entry of food supplies or denies passage within its territory. Restrictions, delays and charges related to the importing relief goods and equipment can impede disaster and conflict operations.120 Most states require customs clearance and impose tariffs and other duties or taxes upon goods admitted into their territory, and these can delay humanitarian relief.121 For example, after the 2004 tsunami, Sri Lanka delayed granting customs clearance for relief consignments for months, while food and medications spoiled.122 Oxfam was reportedly required to pay a £550,000 duty to import 25 four-wheel-drive vehicles.123 Similarly, in Eritrea, in 2005, hundreds of tonnes of UN food aid designated for drought-affected persons were delayed for more than a month at Massawa port because the govern118

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Art. VIII (1) Bruges Resolution. See also, inter alia, IIHL-Principles (Principles 1 and 2, with an explicit right of the victims of disaster to request and receive humanitarian assistance), and the Resolution of the Institute of International Law on the Protection of Human Right and the Principle of Non-Intervention in Internal Affairs of States (Santiago de Compestela Session 1989, available online at www.idi-iil.org/idiE/resolutionsE/1989_comp_03_en.PDF; see art. 5 about the legal offer of food and humanitarian assistance). Barber, Facilitating Humanitarian Assistance, p. 394. See also FAO Voluntary Guidelines, Guideline 15.3 requiring states to ensure ‘safe and unimpeded access to the populations in need’. See in detail Costas Trascasas, pp. 221-249; Fisher, pp. 356-357. A/CN.4/590, para. 94. For details see Adinolfi. IFRC, Legal Issues in the International Response to the Tsunami in Sri Lanka, July 2006, available at http://w3.ifrc.org/Docs/pubs/idrl/report-srilanka.pdf, pp. 15ff.; Fisher, p. 357. Shaikh/Forsdike.

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ment demanded that taxes be paid on the food.124 The correlation between humanitarian assistance and politics is especially apparent in the recent case of careless food storage in Swaziland. According to a 2013 report by IRIN, the humanitarian service of the OCHA, mounds of food aid to Swaziland were found rotting in the government’s main storage warehouses at a time during which approximately 116,000 persons suffered food insecurity.125 Mswati III’s cabinet may have retaliated against members of parliament by disrupting food supplies, in the hope that the people would blame the parliament for their lack of food.126 Humanitarian personnel typically have trouble with visas and internal travel regulations. If relief organisation personnel are delayed at the border, disaster relief assistance cannot be carried out in a timely fashion.127 The Israeli government, for instance, has denied entry visas to humanitarian personnel and their contractors of Arab origin or nationalities, posing a problem to operations that require staff fluent in Arabic.128 Disaster personnel may be allowed to enter freely on tourist or other temporary visas, but later find it difficult to renew documents or obtain work permits. In Thailand, for example, international relief personnel who responded to the 2004 tsunami were required to exit and re-enter the country repeatedly, interrupting their operations in order to renew visas at substantial cost of time and expense.129 Obstructionist policies are addressed in many international instruments.130 The IIHL-Principles, for example, state that all authorities concerned ‘will allow the transit of goods and personnel bringing humanitarian assistance’, and propose the establishment of ‘humanitarian corridors’ that should be respected and protected by the competent authorities of the parties involved and, if necessary, by the UN authority.131 The regime established un124

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‘Eritrea: Food aid held for taxes to be released, says gov’t official’, IRIN Report from 16 August 2005, available at www.irinnews.org/report/55864/eritrea-food-aid-held-fortaxes-to-be-released-says-gov-t-official. Briefing by the FAO-Global Information and Early Warning System (GIEWS) on Swaziland, 11 March 2013; ‘Careless food storage sidelines Swaziland’s hungry’, IRIN Report from 23 May 2013, available at www.irinnews.org/Report/98086/Careless-food-storagesidelines-Swaziland-s-hungry. ‘Careless food storage sidelines Swaziland’s hungry’, IRIN Report from 23 May 2013. A/CN.4/590, para. 82. See Mission Report: Bertini, para. 76. See IFRC, Legal Issues in the International Response to the Tsunami in Thailand, 2006, available at http://ifrc.org/PageFiles/93720/report-thailand.pdf, pp. 15–16; Fisher, p. 357. For a clear overview see A/CN.4/590, paras. 81-119. The IIHL-Principles, Principle 10.

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der the Convention on Temporary Admission is also helpful, since it provides total conditional relief from import duties and taxes and bars import restrictions or prohibitions of economic character.132 The Bruges Resolution, inter alia, stresses in art. VII (1) that states shall facilitate the organization, provision and distribution of humanitarian assistance rendered by other States and organizations. They shall accord them overflight and landing rights, telecommunication facilities and necessary immunities. Humanitarian assistance missions shall be exempted from any requisition, import, export and transit restrictions and customs duties for relief goods and services.133 Freedom of movement within the affected state is essential to the effective delivery of assistance. Many instruments suggest that the affected state has the duty to not unduly limit access to the disaster relief area.134 The Bruges Resolution requires the affected states, in art. VII (3), to permit humanitarian personnel full and free access to all victims and ensure freedom of movement and the protection of personnel, goods and services provided as aid.135 This suggests, e contrario, that any active hindering of the organisation, provision and distribution of humanitarian assistance infringes on this duty to facilitate humanitarian assistance. Humanitarian assistance is often actively undermined by attacks against humanitarian personnel. These attacks are less frequent in disasters that are not complicated by armed conflicts.136 Criminal theft of relief goods and targeting of personnel fall outside scope of this analysis, unless these crimes can 132

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The Convention on Temporary Admission (Istanbul Convention) was adopted on 26 June 1990, and entered into force on 27 November 1993; see particularly arts. 2-3 and Annex B2/B.9. See also art. 9 of the Tampere Convention, which prohibits regulatory barriers to telecommunications assistance during disaster relief operations (Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, adopted on 18 June 1998, entered into force on 8 January 2005 [UN, Treaty Series, Vol. 2296, No. 40906]). A/CN.4/590, paras. 112-113. Art. VII (1) also states that in case visas or other authorizations are required, they shall be promptly given free of charge. For a list of further international and national instruments see A/CN.4/590, paras. 113-115. Barber speaks of 260 humanitarian aid workers injured or killed in violent attacks in 2008 (Barber, Facilitating Humanitarian Assistance, p. 371). For details, see Fisher, p. 360. For further details, see below in part B on pp. 235ff.

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be attributed to the government. All acts that obstruct or prevent humanitarian personnel from discharging their humanitarian functions, or which entail their being subjected to threats, the use of force or physical attack, violate the right to food.137 The GA explicitly and strongly condemns all of these acts.138 The issue of safety and security of humanitarian personnel is specifically addressed in the 1994 Convention on the Safety of UN and Associated Personnel139 and its 2005 Optional Protocol.140 UN bodies, including the GA,141 the ECOSOC142 and the SC,143 have passed many resolutions to ensure the security of humanitarian personnel in disaster settings.144 Access to food assistance may be indirectly impeded by violent attacks on the beneficiaries of aid, or by gender-based violence.145 Rape is frequent in humanitarian aid camps and can scare beneficiaries away. In 2011, in camps for IDPs in Mogadishu, the Somali capital, continual rapes created ‘a climate of fear’.146 The perpetrators were said to be government security forces, who were supposed to protect the women who fled their homes because of drought and famine.147 Special protections from violence against women were rec137

138 139 140

141 142 143 144

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The Bruges Resolution also classifies intentionally directed attacks against personnel, installations, goods or vehicles involved in a humanitarian assistance action as serious breach of fundamental principles of international law (art. IX [1]). GA Res. of 18 February 1998, UN Doc. A/RES/52/167, para. 2. GA Res. of 9 December 1994, UN Doc. A/RES/49/59, Annex. See in particular art. 7 of the Convention. Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel, 8 November 2005, UN Doc. No. A/C.6/60/L.11 (2005), entered into force on 19 August 2010. See, inter alia, UN Doc. A/RES/53/87; A/RES/54/192; A/RES/55/175; A/RES/57/155; A/ RES/58/122; A/RES/62/95; A/RES/63/L.48. See, inter alia, ECOSOC Decisions 1999/1; 2003/5; 2004/50. See, inter alia, SC Resolutions S/RES/1265; S/RES/1296; S/RES/1674. For an overview of the relevant resolutions and their content, see the very useful ‘Compilation of UN Resolutions on Humanitarian Assistance’, OCHA, Policy and Studies Series 2009, pp. 46-64. Ertharin Cousin (WFP) made the point, in her LSE lecture on 17 September 2013, that fear of violent attacks often keeps beneficiaries away from WFP food distribution points. ‘SOMALIA: Rape on the rise amid “climate of fear” in Mogadishu IDP camps’, IRIN Report from 22 December 2011, available at www.irinnews.org/report/94520/somaliarape-on-the-rise-amid-climate-of-fear-in-mogadishu-idp-camps. Ibid. Another example of food assistance being threatened in aid camps in the Democratic Republic of Congo: ‘DR Congo women fight rape with briquettes’, news report by the Global Post, 7 October 7 2013 (available at www.globalpost.com).

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ognised as important, inter alia, by the GA in its special session on ‘Women 2000: gender equality, development and peace for the twenty-first century’.148 Difffijiculties in Practice The international community still depends on the goodwill of the affected country and has little power to prevent political power plays in the realm of humanitarian assistance. Some soft-law instruments suggest practical responses to this poor compliance. The Bruges Resolution, inter alia, proposes that if the refusal of a bona fide offer of humanitarian assistance or of access to the victims leads to a graver humanitarian catastrophe, states or organisations offering assistance may call upon the UN bodies dealing with humanitarian issues or other competent universal or regional international organisations, and ask them to take appropriate measures, in accordance with international law and their statutory rules, to induce the affected state to comply. If this infringement threatens international peace and security, the SC may take necessary measures under Chapter VII of the UN Charter.149 The restrictions imposed by the government of Myanmar on the delivery of humanitarian aid after the Cyclone Nargis illustrate the difficulties that arise when a country fails to meet its obligations under HRL. The cyclone struck Myanmar on 2-3 May 2008, and caused widespread flooding, devastating the Irrawaddy Delta, and leaving about 2.4 million people in desperate need of humanitarian aid.150 But the government of Myanmar, in the weeks after the

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New York, 5-9 June 2000. For details, see the Report of the Secretary-General, Implementation of the Outcome of the Fourth World Conference on Women and of the Special Session of the GA entitled ‘Women 2000: Gender Equality, Development and Peace in the Twenty-first Century’ (A/55/341, 30 August 2000). See also the Convention on Preventing and Combating Violence against Women and Domestic Violence by the Council of Europe (CETS No.: 210, 2011); the CEDAW; the Protocol to the Banjul Charter on the Rights of Women in Africa. Art. VIII (2) and (3) Bruges Resolution. This Resolution further stipulates that persons accused of intentionally committed attacks against personnel, installations, goods or vehicles involved in a humanitarian assistance action shall be tried before a competent domestic or international court or tribunal (Art. IX [2] Bruges Resolution). A similar approach is presented by the IIHL-Principles (Principles 6-7). The OCHA estimated the number of dead or missing at more than 130,000 (OCHA, ‘Cyclone Nargis, Myanmar’, Situation Report No. 34, 23 June 2008). For details about the long-term disaster impact, see Myanmar: Post-Nargis Recovery and Rehabilitation Programme Strategy, FAO- Post-Nargis Recovery and Rehabilitation Programme, January 2009, p. 3ff. (available online at www.fao.org/emergencies/resources/documents/ resources-detail/en/c/171259/).

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disaster, significantly restricted provision of foreign aid.151 The government refused to issue visas to aid workers, restricted access to the most affected areas and insisted that it distributes the aid itself.152 The scale of the emergency, and the frustration felt by the international community, spurred intense debate over international responses and enforcement measures. If a state is resistant to international assistance, the international community can seek to persuade the affected state to accept the aid through diplomatic or military means. If states cannot be forced to accept humanitarian intervention, humanitarian agencies are limited to requesting access from state authorities, based on appeals to humanitarian principles.153 Application of the so-called ‘responsibility to protect’154 is a topic of spirited debate, and there is argument over the legal doctrine that might justify military intervention for the purpose of delivering humanitarian aid to survivors of a natural disaster.155

2

Deliberate Starvation Evoked by Insufffijicient State Protection against Interference by Non-State Actors

This chapter is concerned with situations in which the state is passive, and insufficiently protects its population from private interference. State inactivity can still be deliberate, if it is based on an active decision. For example, if 151 152 153

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For an overview, see Stover/Vinck, pp. 379-402; Suwanvanichkij. Barber, The Responsibility to Protect, pp. 3-4. Cubie, pp. 213-214; Human Rights Watch, ‘Burma: Time for UN Security Council to Act’ (Press Release, 20 May 2008). Available at http://hrw.org/english/docs/2008/05/20/burma18882.htm. GA Res. 60/1 of 16 September 2005, paras. 138-139 (limiting this responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity). See also SC Res. 1674 (2006), of 28 April 2006, para. 4; Report of the International Commission on Intervention and State Sovereignty’ (Ottawa: International Development Research Council, 2001), paras. 2.14 and 2.29; Report of the High-Level Panel on Threats, Challenges and Change (A/59/565 and Corr.1), paras. 201-202; The existence of a ‘responsibility to protect’ in humanitarian disasters is a much-discussed but still very contentious issue. For details, see Barber, The Responsibility to Protect; UN Doc. A/CN.4/590, para. 250 (pointing out that the concept of ‘responsibility to protect’, as formulated in the 2005 World Summit Outcome, was not thought to apply in the context of disasters and that protection from natural disasters was more closely related to the broader academic discussion of a potential devoir d’ingérence [‘duty to interfere’]); Bettati, pp. 639-670; Heintze, pp. 271-295. For a deeper analysis of the ethical dilemmas and tensions connected with the ‘responsibility to protect’, see Diggelmann, Ethical Dilemmas, pp. 347ff.

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non-state actors create a famine, the state may choose not to provide aid if starving that population serves the state’s purposes. In such cases, deliberate inaction is a state strategy. For example, the Sudanese government used purposive inaction to further its counterinsurgency efforts against Darfur, when it failed to protect Darfur’s population from Janjaweed rebels who had been burning down fields and poisoning drinking water since 2003.156 Beyond situations of political instability, the private sector also has a major impact on people’s food security. For example, small farmers may be pushed into poverty, and food production may drop precipitously when agribusiness uses unsustainable farming methods. Private sector actions may limit the population’s ability to produce a large enough quantity, or high enough quality of food to sustain current or future generations.157 Private industries may also destroy the livelihood of populations by polluting the environment.158 Pesticide overuse by private companies can give rise to new pests and viruses that can destroy crops and ultimately lower food production.159 In addition, when water sources are privatised, water can be priced too high for the average consumer to afford, and can be denied to farmers who need to use it for irrigation.160 In Bolivia, in 1999, Bechtel, a private construction contractor, took control of the public water system in Cochabamba, and the price of water rose beyond the ability of the local population to afford it.161 In many countries, companies are clear-cutting vast forests, causing irreversible deforestation, soil erosion and other environmental changes. These practices have lowered food production in countries like Kenya, which are already at risk of shortages.162 Agricultural non-food production, e.g., for biofuel, palm oil or cotton, 156

157 158 159 160

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In this example, the government not only failed to prevent the attacks but was actively engaged by recruiting and supporting the Janjaweed rebels. For details, see the Report of the UN Darfur Commission, 25 January 2005, paras. 98ff.; Böcker, pp. 83-84; Decision of the African HR Commission, Communication No. 296/2005, Centre on Housing Rights and Evictions v. Sudan, adopted during the 45th Ordinary Session (held 13-27 May 2009). The details about the Darfur conflict will be provided below as regards the analysis of the specific law of armed conflicts. See below on pp. 177ff. See the address by the Swiss Federal Council’s delegate for humanitarian aid: Bessler. Many examples are provided by Narula, pp. 720-721; Madeley, pp. 87ff. Madeley, p. 67; Narula, p. 720. Stiglitz, pp. 54-58. For details, see Galiani/Gertler/Schargrodsky, pp. 83-120; Narula, pp. 721-722. For details on the human rights obligations and responsibilities that apply in cases of non-state service provision of water, see the Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, Catarina de Albuquerque, A/HRC/15/31, 29 June 2010. For details, see Shultz, pp. 9-42; Perreault, pp. 263-284. Narula, p. 720; Madeley, pp. 54-55.

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removes land from food production and can endanger the food security of vulnerable populations.163 In addition to irreparably damaging biodiversity and access to food through agricultural practices, the private sector has also done so with fisheries. Unsustainable depletion of fish threatens the poor with food insecurity.164 In East Africa’s Great Lake Region for instance, increased liberalisation of trade in the fisheries of Lake Victoria is directly linked to food insecurity. The livelihood of local communities depends on the fishery in the lake. Local fish are the only accessible source of nutritious food for poor people. Locals are deprived of a cheap source of protein by the state’s failure to set a ceiling on fish exports, and this loss increases pressure on their resource base.165 Though the use of food as a political tool is less apparent when the state fails to interfere with harmful practices of the private sector than when it fails to deter or address the actions of militants or criminals (as in the case of Darfur), the state may still benefit from inaction in monetary terms. A state can attract foreign firms and stimulate economic growth when it deliberately ignores the malfeasance of private interests.166 States can also directly profit from levying taxes and duties, and from other compensations.167 Financial incentives may encourage governments to turn a blind eye to human rights abuses. In these cases, the resulting food insecurity here might not be politically motivated, but is accepted as side-effect of achieving some other goal. For example, Shell Petroleum Development Company of Nigeria Limited (SPDC) pays taxes to the Nigerian government, as well as high royalties from Nigeria’s largest liquefied natural gas plant. According to Shell, between 20082012, it paid about $42 billion to the Nigerian government. Shell claims that

163

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For details, see Eide, The Right to Food. See also the Report by the former Special Rapporteur on the Right to Food, Jean Ziegler, which calls for a five-year moratorium on biofuels (A/62/289, para. 44). For details on the threats posed by current fishery policies and practices to the realisation of the right to food, see the Report by the Special Rapporteur on the Right to Food ‘Fisheries and the right to food’ (A/67/268, 8 August 2012). See also Madeley, pp. 80ff. Abila, paras. 6.5, 8-9; ‘Uganda: Lake Victoria degradation threatening livelihoods’, IRIN Report, 1 August 2008 (available at www.irinnews.org/report/79568/uganda-lake-victoria-degradation-threatening-livelihoods). The World Bank has reported that countries become more attractive to investors when local land rights decrease and land acquisition is made easier for investors (Deininger/ Byerlee, p. 55). In reference to the rents charged for leased land, see Deininger/Byerlee, pp. 108-109.

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the Nigerian government receives about 95% of its revenue after it deducts the costs of the SPDC operated joint venture.168 The current section addresses this insufficient protection of states against interference of non-state actors. I must first clarify the interpretation of the phrase ‘actions of non-state actors’; then I can elaborate on the obligation of states to protect the right to food (2.1). Following this discussion, I cover two especially challenging cases (2.2): food prices (a) and land grabbing (b). State Agency v. Actions of Non-State Actors The current structure of international HRL creates direct obligations only for states.169 The conduct of individuals or groups, which may legally not be attributed to a state, is referred to as conduct of ‘non-state actors’.170 Traditionally, non-state actors may take action that infringes on an individual’s rights, but they cannot breach international HRL since they do not have international legal obligations.171 But debate over the duties and accountability of private actors – mainly transnational corporations – has heated up in recent years.172 The scale of Shell’s exploitation of Nigeria’s resources has sharply increased international pressure on transnational corporations. Shell has responded to this pressure by underlining its commitment to improve environmental performance and ‘to take action to put an end to all forms of

168

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171 172

All these facts and figures are available at www.shell.com.ng/aboutshell/at-a-glance. html. I received similar information from Arjan Waayer, a Senior Legal Counsel for Shell, at the panel on ‘Human rights responsibilities in the oil and gas sector – Applying the UN Guiding Principles’, 23 May 2013, London. See for example the International Council on Human Rights Policy, Beyond Voluntarism – Human Rights and the Developing International Legal Obligations of Companies, Versoix (Switzerland): February 2002, p. 55 (see also pp. 56-57 on the loosening of the strict structures in modern times). In this regard, the discussion about state-owned and controlled companies or enterprises engaged in food production is of interest. In this special case, there are difficult questions of attribution (see, inter alia, Commentary to the ILC-Articles, para. 6 of the comment on art. 8; De Schutter, Human Rights Law, pp. 216ff.). If the conduct of these corporations is directly attributed to the state, the legal analysis in the first chapter is relevant (see pp. 64ff.). McBeth, The International Law of Human Rights, p. 642; Narula, pp. 691, pp. 724ff. See the most prominent Ruggie-Principles; or the OECD Guidelines for Multinational Enterprises, 2011 edition, OECD 2011 (available at www.oecd.org/daf/inv/mne/48004323. pdf); or Supreme Court of the USA, Decision of 17 April 2013, Esther Kiobel, Individually and on Behalf of Her Late Husband, Dr. Barinem Kiobel, et al., Petitioners v. Royal Dutch Petroleum Co., et al., No. 10-1491.

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oil contamination’.173 Shell’s general business principles also claim a commitment to sustainable development174 and recognition of a responsibility to society ‘to support fundamental human rights […] and to give proper regard to health, safety, security and the environment’.175 Whether their commitment is deep enough to address the food insecurity of Nigeria’s inhabitants has to be left open.176 Since this analysis focuses on state sponsored starvation, and is limited to describing the duties of states to oppose deliberate starvation, detailed consideration of this question falls outside its scope.177 In sum, if the actions of non-state actors can be attributed to a state, the state is responsible for the breach. Imputed acts are considered to be state acts, and are dealt with in the first chapter. This chapter covers the responsibility of the state for human rights infringements by non-state actors that are not directly attributed to the state, in cases where the state failed to exercise due diligence to prevent or alleviate the effects of actions taken by non-state actors, and did not take appropriate action to protect the human rights of victims.178 I here address the failure of the state to prevent violations of human rights that originate in private relationships because in such cases the state may default on its obligation to protect.

173 174 175 176 177

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See Shell’s official position on its environmental contributions at www.shell.com.ng/ aboutshell/media-centre/annual-reports-and-publications.html. Shell General Business Principles, Shell International Limited 2010, p. 2 (available at www.shell.com/global/aboutshell/who-we-are/our-values/sgbp.html). Ibid., p. 3, para. E. See also Principles 5 and 6 on environment and local communities. For details on human rights responsibilities in the oil and gas sector, see Lindsay/McCorquodale/Blecher et al., pp. 2-66. For details, see Kaufmann, The Legal Matrix of Human Rights and Trade Law; Kaufmann, Eigenverantwortung oder völkerrechtliche Bindung; Kinley, pp. 145-203; Narula, pp. 691ff.; Ssenyojo, The Applicability of International Human Rights Law, pp. 725-760; De Schutter, Transnational Corporations as Instruments, pp. 403-444; id., The Challenge of Imposing Human Rights Norms, pp. 1-40; id., International Human Rights Law, pp. 395-399; Alston, The ‘Not-a-Cat’ Syndrome; McCorquodale, Overlegalizing Silences, pp. 384-388; id., Non-State Actors; id., Towards More Effective Legal Implementation. Cf. the concepts in Commentary to the ILC-Articles (Chapter II, Attribution of Conduct to a State, para. 4; para. 15, on the comment on art. 10); Ssenyojo, Non-State Actors, pp. 112ff.; De Schutter, International Human Rights Law, pp. 366-367; McBeth, The International Law of Human Rights, p. 642; McCorquodale, Corporate Social Responsibility, p. 388.

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2.1 The Obligation to Protect I first address the positive obligations of states to protect people’s access to food (a). Then I describe judicial practice concerning this obligation (b), and examine obstacles to its progressive realisation (c). a) Positive Obligations The Commission on ESCR clarified that states must not violate the right of individuals under their jurisdiction to access food by ensuring that state agents do not infringe on those rights. In addition, states must also intervene when acts are committed by private parties, either individuals or groups, which may violate this right. A violation of the right to food can thus result not only through the direct action of states, but also through a state’s failure to sufficiently regulate the activities of non-state entities, when those activities prevent its subjects from gaining access to sufficient food.179 According to the Maastricht Guidelines, states are responsible for violations of ESCR that result from their failure to exercise due diligence in controlling the behaviour of non-state actors.180 This ‘obligation to protect’ requires the state to prevent such violations and to provide remedies where preventive measures have failed.181 The Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Ruggie, puts this in concrete terms: States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.182 States should thus assess, and periodically reassess, the adequacy of current laws to ensure that they meet their legal duty to protect; and then should take appropriate steps to amend their laws and practices if analysis reveals a 179 180 181

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Committee on ESCR, General Comment No. 12, para. 19. Maastricht Guidelines on Violations of ESCR, para. 18. For a discussion of the HRL referencing due diligence of states, see De Schutter/Ramasastry/Taylor/Thompson. De Schutter, International Human Rights Law, p. 365; Ssenyojo, Non-State Actors, p. 114; id., The Applicability of International Human Rights Law, pp. 725-760; Kälin/Künzli, paras. 51, 65ff. Ruggie-Principles, Principle 1.

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lack.183 A state cannot exempt itself from its human rights obligations by using non-state actors to provide services. The state remains the primary dutybearer for the realisation of human rights, no matter what responsibilities it delegates to other parties. States have an obligation to protect people’s access to water and food, and are not excused from responsibility when private service provision has a negative impact on that access, especially in the case of privatisation of water.184 States must regulate and monitor those who deliver services, and must adopt necessary supplementary measures, including ensuring that private services which provide vital food and water are affordable.185 The obligation to protect the right to adequate food also requires that states adopt protective measures to ensure food safety and to prevent contamination of foodstuffs through, inter alia, inappropriate handling at any stage in the food chain.186 Biotechnology, pesticides, food additives and contaminants may endanger people’s food security: The right to adequate food demands that available and accessible food is sustainable for both present and future generations. The core content of the right to adequate food implies that food be available in a quantity and quality sufficient to satisfy the dietary needs of individuals, and that it also be free from adverse substances. States must protect their population from unsafe food, even if produced by the private sector. 187 Guidance is provided by the Codex Alimentarius, a joint FAO/World Health Organization (WHO) Food Standards Programme.188 The Codex sets international food standards, guidelines and codes of practice that

183 184

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Lindsay/McCorquodale/Blecher et al., p. 8. Report of the former Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation (today’s Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation), Catarina de Albuquerque, A/HRC/15/31, 29 June 2010, para. 18. For details on the impact of privatisation of water services, see Stiglitz, pp. 54-58; Narula, pp. 721-722; Galiani/Gertler/Schargrodsky, pp. 83-120. Report of the former Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation (today’s Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation), Catarina de Albuquerque, A/HRC/15/31, 29 June 2010, para. 18. Committee on ESCR, General Comment No. 12, para. 10. Ibid., paras. 7-8. The Sixteenth World Health Assembly approved the establishment of this Programme in May 1963. Details on the relevant standards and on the foundation history of the Codex are provided at www.codexalimentarius.org.

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contribute to the safety, quality and fairness of food trade.189 Even though adoption of these recommendations is voluntary, they serve states as a basis for their national programmes to protect food security and to enforce their duties under art. 11, in conjunction with art. 2 ICESCR. The GA emphasised that: When formulating national policies and plans with regard to food, Governments should take into account the need of all consumers for food security and should support and, as far as possible, adopt standards from the Food and Agriculture Organization of the United Nations and the World Health Organization Codex Alimentarius.190 Food security should be implemented by states on a global scale, in the current negotiations on trade and agriculture.191 If all these preventative measures do not successfully protect the right to food, remedial measures become necessary. Ruggie emphasises that, under existing192 international law, states must ‘take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.’193 Courts and other judicial bodies play a significant role here, but other non-judicial grievance mechanisms can also be effective. They should be legitimate, accessible, predictable, equitable, transparent, rights-compatible and a source of continuous learning.194 States 189

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The Codex standards are based on available science assisted by independent international risk assessment bodies or ad-hoc consultations organised by FAO and WHO. They are the benchmark for international food standards (e.g., Toma-Bianov, p. 191). See also para. 16 of the Declaration of the WFS: Five Years Later (June 2002) (reaffirming the important role of Codex Alimentarius). GA Res. on Consumer Protection, A/RES/39/248, 16 April 1985, para. 39. For an overview on food security in trade law, see Kaufmann/Grosz, Poverty, Hunger and International Trade, particularly pp. 93-107; Kaufmann, The Right to Food and Trade in Agriculture; Kaufmann/Heri. Ruggie was adamant that he was not creating new law or obligations, but that he was re-stating existing international law (see para. 14, specifically, of the ‘Introduction to the Guiding Principles’ and preambular para. 4 [‘General Principles’] of the RuggiePrinciples). It is also notable that the Ruggie-Principles were unanimously endorsed by the HRC on 16 June 2011 (HRC, seventeenth session, UN Doc. A/HRC/RES/17/4). Ruggie-Principles, Principle 25. Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, para. 13; Golay, The Right to Food and Access to Justice, p. 23; Ruggie-Principles, Principle 31.

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must ensure that disputes between private actors are resolved in a manner that respects ESCR.195 Exemplary remedial protection of individuals against actions of third parties was, for instance, provided by the High Court of Uganda in 2013. In this case, the government of Uganda leased the land of indigenous customary tenants to the German company, Neumann Kaffee Gruppe, to establish a large-scale coffee plantation. Subsequently, tenants were forcibly evicted from their homes, and their houses and property were burnt by soldiers.196 The court decided that compensation must be paid to the over 2000 people who had been evicted from their land. The court held the state agents liable and also emphasised that investors are duty-bound to ensure that indigenous people are not exploited. Specifically, the court held that the investors ‘lost all sense of humanity’, and that as honourable businessmen they should have respected the human rights and values of people. The court concluded that ‘they should have not moved into the land unless they had satisfied themselves that the tenants were properly compensated, relocated and adequate notice was given to them.’197 Obligation to Protect Civil and Political Rights The notion that positive obligations are limited to ESCR is outdated. CPR imply positive obligations too.198 The legal framework that surrounds the obligation to protect applies to all human rights.199 Several judgments issued by 195

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See, for instance, the decision of the Constitutional Court of South Africa from 13 May 2005, President of the Republic of South Africa and Anor. v. Modderklip Boerdery (Pty) Ltd (Case CCT 20/04, 40 2005 [5] SA 3 [CC]), which recognised that courts must address the realities of injustice and poverty when they deal with private rights. High Court Of Uganda, Baleke and 4 Others v. Attorney General and 2 Others, Civil Suit No. 179 of 2002, Judgment of 28 March 2013, pp. 10-11. The Judgment is available at www. ulii.org/ug/judgment/high-court/2013/52. Ibid., p. 34, para. 107. For details on evictions for the coffee plantations in Mubende, see www.fian.org/what-we-do/case-work/uganda-mubende/. See HR Committee, General Comment No. 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 8 (‘HR Committee, General Comment No. 31’); De Schutter, International Human Rights Law, p. 381 (stating that ‘[t]he existence of an obligation to protect cuts across the full range of the rights listed in the ICCPR’). Golay, The Right to Food and Access to Justice, pp. 17-18. The Ruggie-Principles also clarify the responsibilities that apply to ‘the entire spectrum of internationally recognized human rights’ (see the commentary to Principle 12, para. 1 of the Ruggie-Principles). For details of the equal nature of all human rights and their imposed obligations, see Sepulveda, pp. 171-172.

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international human rights bodies have held states responsible for lack of due diligence to prevent or to respond when human rights violations of both ESCR and CPR were committed by non-state actors.200 The duty of states to protect human rights in general was confirmed in 1988, by the Inter-American Court on Human Rights. In the case ‘Velásquez Rodríguez’, concerning the disappearance of a Honduran student, the court found that a state is in violation of its obligations to protect the human rights of its citizens, when it allows private persons or groups to infringe freely and with impunity on human rights. The court concluded that the Honduran government had violated the ACHR by failing to ‘respect and ensure the student’s right to personal liberty, humane treatment, and life’.201 The ECtHR took a similar approach to the right to private life even earlier. The European court decided that art. 9 ECHR does not merely compel the public authorities to abstain from arbitrary interference, but conferred on the state a positive obligation to adopt measures designed to secure respect for private life, even in the sphere of relationships between individuals.202 The relevance of the right to life has been here, self-evidently, addressed in the discussion of deliberate starvation of the population. The second sentence of art. 6 (1) ICCPR expressly obligates state parties to protect, by law, the right to life. The majority of delegates in the HR Committee, representing a variety of legal systems, spoke out in favour of obligating state parties to protect life on the horizontal level.203 The HR Committee furthermore makes clear that by virtue of art. 2 ICCPR member states have the positive obligation to also protect individuals ‘against acts committed by private persons or entities that would impair the enjoyment of Covenant rights [...]’.204 Status of Customary International Law? Is the obligation to protect food security against interference by non-state actors recognised as customary international law? It would be premature to answer this question in the affirmative. The debate over a state’s obligation to protect human rights against infringement by private actors is relatively 200

201 202 203 204

A good overview on judicial practice is provided by Marks/Azizi, pp. 728ff. (The standard of due diligence). See also Diggelmann, Wirtschaftsvölkerrecht und Menschenrechte, p. 86 (on the relevant practice of the ECtHR). Inter-American Court on Human Rights, Velasquez Rodriguez-Case, 29 July 1988 (Merits), para. 194; see also, the explanations in paras. 174-175. ECtHR, Case of X and Y v. The Netherlands, Application No. 8978/80, Judgment of 26 March 1985, para. 23. HR Committee, General Comment No. 6, paras. 4-5; Nowak, art. 6, paras. 4ff. HR Committee, General Comment No. 31, para. 8.

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new. Tomuschat emphasises that ‘the magic words “to protect” are just the starting point for a long process of reflection and debate’.205 At least, it is generally accepted that states must adopt measures of vigilance or punishment to regulate private conduct so as to prevent crimes against humanity and genocide.206 The prohibitions of genocide and of crimes against humanity are both generally seen as imposing on states inderogable duties and obligations erga omnes.207 States must take all necessary steps to protect their citizens from breaches of jus cogens; this is customary law.208 The ICJ explicitly interpreted art. I of the Genocide Convention (the undertaking by the contracting parties to prevent and punish the crime of genocide) as stating a concrete obligation of the state parties to prevent genocide.209 b)

Judicial Practice Concerning the Obligation to Protect Food Security It is here worth mentioning the substantial judicial practice concerning the obligation to protect food security. The exact state obligations were most precisely illustrated by the previously mentioned Shell Oil case, in which the private concern had polluted the Niger Delta, since 1950, to a degree that threatened the food security of the Ogoni people.210 While claims were directed

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Tomuschat, Human Rights, p. 44. Commentary to the ILC-Articles, Chapter II, Attribution of Conduct to a State, para. 4; and para. 15 of the comment on art. 10. Generally recognised as peremptory norms are not only the prohibitions of genocide and crimes against humanity, but also the prohibitions of aggression, slavery, racial discrimination and torture, and the right to selfdetermination (Commentary to the ILC-Articles, para. 5 of the comment on art. 26). ICJ decision on Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26  February 2007, ICJ Reports 2007, p. 72, para. 161; ICJ decision, Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, ICJ Reports 1970, para. 34; Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23; see also ICTY decision, Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment of 2 August 2001, para. 541. For details, see Bassiouni, International Crimes, particularly on p. 68. Commentary to the ILC-Articles, Chapter II, Attribution of Conduct to a State, para. 4. ICJ decision on Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, p. 72, para. 162. For information about the environmental degradation in Ogoniland, see the UNEP Report about the Assessment of Ogoniland, 2011 (available online at http://postconflict. unep.ch/publications/OEA/UNEP_OEA.pdf); IRIN News Report, Nigeria: IRIN Focus

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against the oil company,211 critiques were also offered on the behaviour of the Nigerian government. The African HR Commission classified as a violation of human rights both the active involvement and passive behaviour of the Nigerian government in reaction to the activities of the Royal Dutch Shell.212 The Commission emphasised in this case: ‘Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties’.213 As regards the right to adequate food, the Commission found that ‘[t]he African Charter [Banjul Charter] and international law require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens.’214 The Commission concluded that the minimum duties of the state to secure the right to food were violated, inter alia, because the Nigerian government allowed private parties to destroy or contaminate food sources and therefore prevented people from feeding themselves.215

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on Ogoni Oil Spill, 13 June 2001 (available at www.irinnews.org/report.asp?ReportID=8 131&SelectREgion=West_Africa&SelectCountry=Nigeria). The decision by the District Court of The Hague, Judgment of 30 January 2013 (A.F. Akpan & anor -v- Royal Dutch Shell plc & anor, Case No. C/09/337050; HA ZA 09-1580) is most interesting, in which the court held that Shell committed a specific tort of negligence against the plaintiff by insufficiently securing a wellhead prior to the two oil spills in 2006/2007 and ordered compensation for damages suffered (para. 5.1). See also US Court of Appeals for the Second Circuit, Docket Nos. 06-4800-cv, 06-4876-cv, 17 September 2010; Supreme Court of the USA, decision of 17 April 2013, Esther Kiobel, Individually and on Behalf of Her Late Husband, Dr. Barinem Kiobel, et al., Petitioners v. Royal Dutch Petroleum Co., et al., No. 10-1491 (on the US Alien Tort Claims Act and extraterritorial obligations); and the case before the US District Court of the Southern District of New York, Ken Wiwa, et al. v. Royal Dutch Petroleum Co (Shell), et al., Case 1:96-cv-08386-KMW-HBP (leading to a settlement before the start of the trial, in which Shell agreed to pay $15.5 million, see, e.g., NY Times, Jad Mouawad, ‘Shell to Pay $15.5 Million to Settle Nigerian Case’, 8 June 2009, online at www.nytimes. com/2009/06/09/business/global/09shell.html?_r=2&adxnnl=1&adxnnlx=1289920241Jc+ypae9kZYMqEnzJ7ZWDw&). Decision of the African HR Commission of 27 October 2001, Communication No. 155/96: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, para. 57ff. For details on this decision, see Coomans, The Ogoni Case. The active involvement of the government was discussed on p. 53. Decision of the African HR Commission of 27 October 2001, Communication No. 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, para. 57. Ibid., para. 65. Ibid., paras. 65-66.

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This position was reaffirmed in 2012 by the Court of Justice of the Economic Community of West African States (ECOWAS).216 The ECOWAS Court emphasised the existing obligation of the Nigerian government to prevent and address environmental pollution by holding accountable those who caused it and to ensure that adequate reparation is provided for the victims.217 It rejected Nigeria’s contention that oil exploitation, and the oil spill in particular, are not directly related to poverty in the region, and that the complainant’s allegations are speculative.218 The ECOWAS court pointed out that the adverse effect of oil spills on water quality, aquatic life and soil fertility, and, thus, on health and the means of livelihood of people in its vicinity is ‘public knowledge’.219 The court based its deliberations on art. 24 of the Banjul Charter, which states people’s right to a general satisfactory environment favourable to their development. The court’s conclusion about the resulting obligations in relation to art. 1 of the Banjul Charter helps clarify the concrete extent of the general ‘obligation to protect’ of ESCR: The position of the court that the state has both an ‘obligation of attitude’ and an ‘obligation of result’ is interesting.220 It is not enough that a state takes all appropriate legislative, administrative and other measures to fulfil this obligation; it must also ‘ensure that vigilance and diligence are being applied and observed towards attaining concrete results’.221 In the Shell case, the many measures taken by the Nigerian government did not protect the region from continued environmental degradation. Therefore, the court concluded that Nigeria had defaulted in its duties to seriously and diligently hold accountable any of the perpetrators of these acts of environmental degradation: Nigeria violated arts. 1 and 24 of the Banjul Charter.222 The court emphasised that this omission encouraged offenders to ‘feel free to carry on their harmful activities, with clear expectation of impunity’.223 In the example of the destruction wreaked by the Janjaweed rebels in Darfur, the African HR Commission similarly held that the Sudanese government 216

217 218 219 220 221 222 223

Court of Justice of the ECOWAS, Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, decision of 14 December 2012, Judgment No. ECW/CCJ/JUD/18/12, available at www.courtecowas.org/site2012/pdf_files/decisions/ judgements/2012/SERAP_V_FEDERAL_REPUBLIC_OF_NIGERIA.pdf. Ibid., para. 97. Ibid., para. 74. Ibid., para. 96. Ibid., para. 100. Ibid., para. 101. Ibid., paras. 104, 110-12. Ibid., para. 111.

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violated, inter alia, arts. 1 and 16 of the Banjul Charter.224 The Commission held that the destruction of homes, livestock and farms, and the poisoning of water sources exposed the victims to serious health risks and violated their right to health.225 With reference to General Comment No. 14 of the Committee on ESCR,226 the Commission held that states should ensure that third parties do not limit people’s access to safe and potable water and an adequate supply of safe food.227 This decision endorses the Commission’s prior decision of 1996, in which it stated that ‘states parties should take the necessary measures to protect the health of their people’ and that the failure of a government ‘to provide basic services such as safe drinking water’ constitute a violation of the right to health.228 c) Only Progressive Realisation As with all the ESCR, progressive realisation is all that is required, pursuant to art. 2 (1) ICESCR. Acceptance of progressive realisation weakens the substance of positive state obligations. The Committee on ESCR emphasises that state parties are still required to use all appropriate means to satisfy the obligation to take steps, including in particular the adoption of legislative measures.229 But the positive obligation to protect the exercise of rights might not be absolute. Unlike the extensive approach taken by the ECOWAS court,230 De Schutter describes it as only an obligation of means, rather than an obligation of result. Nevertheless, states must promptly begin to take all reasonable measures to prevent the violation of human rights. If such a violation has oc224

225 226

227

228

229 230

Decision of the African HR Commission, Communication No. 296/2005, Centre on Housing Rights and Evictions v. Sudan, adopted during the 45th Ordinary Session (held 13-27 May 2009), paras. 209-11, 228. Ibid., para. 212. In General Comment No. 14, the Committee on ESCR deliberates on the concrete state’s obligation to protect the right to health (E/C.12/2000/4, 11 August 2000, paras. 33, 35, 39 and 51). Decision of the African HR Commission, Communication No. 296/2005, paras. 209-210. See also the Submission to the UPR concerning Sudan, UPR Working Group of the Human Rights Council, Centre on Housing Rights and Evictions November 2010. Decision of the African HR Commission of 4 April 1996, Communications No. 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group and Others v. Zaire (2000), AHRLR 74 (ACHPR 1995), para. 47. Committee on ESCR, General Comment No. 3, para. 3. I emphasised that the court referred to an ‘obligation of result’ (Court of Justice of the ECOWAS, Socio-Economic Rights and Accountability Project [SERAP] v. Federal Republic of Nigeria, decision of 14 December 2012, Judgment No. ECW/CCJ/JUD/18/12, para. 100).

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curred, a state infringes its obligation if ‘there were certain supplementary measures which the State could have taken but failed to take, although this would not have imposed a disproportionate burden’.231 A progressively realised obligation to protect people’s resource base for food requires immediate steps to be taken to ensure that activities of the private business sector and civil society conform with the right to food.232 In addition, the obligation to eliminate discrimination, the prohibition of retrogressive measures and the obligation to protect the minimum essential level of the right to food are in immediate effect.233 While only states are parties to the covenant, and thus are ultimately accountable for compliance with it, the state is obliged to provide an environment in which all members of society – individuals, families, local communities, NGOs, civil society organisations, and the private business sector – can carry out their responsibilities to respect the right to adequate food.234 States have to be at the centre of any effort to impose human rights responsibilities on corporations, and must be able to impose domestic regulation.235 Each state party must decide for itself which means are most appropriate under the circumstances, with respect to each of the rights.236 Art. 11 (2) (a) ICESCR explicitly requires the states to ‘improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources’. This implies that, in developing countries, structural changes must be made in agriculture, since half of the hungry in the world are themselves farmers but cannot produce enough to feed their families.237

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De Schutter, International Human Rights Law, pp. 414-415. See, for instance, ECtHR, E. and others v. UK (Application No. 33218/96), Judgment of 26 November 2002, paras. 89ff. (as regards the obligation of states to protect against inhuman and degrading treatment). Committee on ESCR, General Comment No. 12, para. 27. OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, pp. 20-22; Committee on ESCR, General Comment No. 3, para. 10. Committee on ESCR, General Comment No. 12, para. 20. Kinley, p. 222 (ascribing an ‘essential guardianship of human rights’ to the state). See also Ruggie-Principles, para. 14 of the Introduction and Principle 1. Committee on ESCR, General Comment No. 3, para. 4. Haugen, p. 1180.

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Assessing Compliance Monitoring the progressive realisation of ESCR is demanding, particularly when it comes to positive obligations. There is already confusion about the precise nature of government obligations, so it is difficult to determine if sufficient steps have been taken by member states. An unambiguous formulation of the required steps is essential for the realisation of the right to food. Each state must be clear on the demands of art. 11 ICESCR. Uncertainty about exact duties makes supervision difficult, and provides opportunity for malevolent states to hide passive abuses. The vagueness of art. 11 ICESCR has been increasingly tackled and more specific voluntary guidelines, principles and action plans have been established.238 Governments follow existing guidance voluntarily, though, and so these guidelines cannot address deliberate ESCR abuses.239 However, clear instructions do aid in detection of prevailing deficits. The Committee on ESCR monitors the state’s efforts by observing their submitted periodic state reports. Therefore, states must indicate in their reports which measures they have taken in this regard.240 Each state is required to adopt a national strategy to ensure food and nutrition for all.241 As indicated in art. 2 (1) ICESCR, the term ‘by all appropriate means’ allows each state party to decide for itself which means are the most appropriate under the circumstances. Legislative frameworks and action plans are the most common means, but also judicial, administrative, financial, educational or social measures may be taken.242 However, to ensure efficient monitoring, 238

239 240 241

242

See the 2004 FAO Voluntary Guidelines, which support the progressive realisation of the right to adequate food in the context of national food security (together with the FAO Right to Food Guidelines – Information Papers and Case Studies, Rome: FAO 2006); the more developed seven-step approach by the GSF; for details, see the FAO Factsheet, ‘The Human Right to Adequate Food in the Global Strategic Framework for Food Security and Nutrition – A Global Consensus’, Rome: FAO 2013, available at www. fao.org/docrep/019/i3546e/i3546e.pdf; and the FAO ‘Methods to Monitor the Human Right to Adequate Food’, Vol. I-II, Rome: FAO 2008. The Special Rapporteur on the Right to Food, Olivier De Schutter, calls the increased focus on the implementation a sign that ‘[t]he right to food has entered a new phase’ (Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, para. 4). Roth, p. 67. See arts. 16-24 ICESCR; Committee on ESCR, General Comment No. 3, para. 4. Committee on ESCR, General Comment No. 12, para. 21; FAO Voluntary Guidelines, Guideline 3; Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, paras. 42-46. De Schutter, International Human Rights Law, pp. 466ff.; Sengupta, p. 131. For details, see Coomans/Yakpo, particularly p. 27; Committee on ESCR, General Comment No. 3, paras. 4-7.

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states need to ‘indicate in their reports not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances’.243 In practice, many codes of conduct have been elaborated to ensure that non-state actors and, in particular, the private business sector, pursue their activities within a framework that respects the right to adequate food.244 When it monitors the submitted state reports, the Committee on ESCR applies the standard elaborated in the FAO Voluntary Guidelines and asks states to indicate if they have adopted or envision adopting these guidelines.245 Guideline 4, on the necessary measures to protect market systems, is worth mentioning, since it, inter alia, asks states to develop corporate social responsibility, and to provide adequate protection to consumers against fraudulent market practices, misinformation and unsafe food. Guideline 6 encourages states to involve all relevant stakeholders in the progressive realisation of the right to adequate food, and also encompasses the private sector.246 Nevertheless, the obligation to protect is still very weakly realised, particularly as regards ESCR. The Committee on ESCR has not yet remedied this unsatisfactory situation. Human rights treaty dispute settlement bodies have repeatedly found negligent states to be in breach of their human rights obligations.247 In the Shell case, for instance, the African HR Commission, the ECOWAS court and the Committee on ESCR were concerned with Nigeria’s deficient human rights situation and food insecurity. In 1998 the Committee expressed its great disturbance ‘that 21 per cent of the population of Nigeria live below the poverty line in spite of the country’s rich natural resources’.248 It was further alarmed by the extent of the devastation that oil exploration has caused to the environment and to quality of life in those areas, including Ogoniland, where oil has been extracted without due regard for the health and well-being of the people and their environment.249 Yet the suggestions

243 244

245 246 247 248 249

Committee on ESCR, General Comment No. 3, para. 4. See, the Rio+20 Corporate Sustainability Forum from 15-18 June 2012 in Rio de Janeiro, held in cooperation with the Rio+20 Secretariat, the UN System and the Global Compact Local Network Brazil. See the reporting guidelines adopted by the Committee on ESCR on 24 March 2009 (E/C.12/2008/2), para. 47. See the FAO Voluntary Guidelines, Guidelines 4.3.-4.4, and 6.1. For a list of all the cases, see the case law database on www.escr-net.org/caselaw. Committee on ESCR, Concluding observations: Nigeria, E/C.12/1/Add.23, 16 June 1998, para. 25. Ibid., para. 29.

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and recommendations of the Committee have been disregarded.250 The Committee on ESCR’s lack of political power is made evident by Nigeria’s failure to submit more than one report, in 1996, and the fact that its second report has been overdue since 2000.251 The ECOWAS decision of 2012 highlights the refusal of the Nigerian government to take appropriate measures to successfully prevent the continued environmental degradation of the Ogoniland.252 2.2

Two Particularly Challenging Issues: Food Prices and Land Grabbing a) Food Prices Starvation can be evoked by obvious practice of non-state actors, but also in a more indirect, hidden way. When food becomes inaccessible due to high food prices, that also threatens food security.253 The obligation to protect poor people’s right to food against actions of others does not only imply a duty to ensure that enterprises and private individuals do not actively deprive individuals of access to adequate food. The poor must also be insulated from food price fluctuations and against food prices spikes.254 Sen points out that the focus must be on the special vulnerability of those whose entitlements are particularly fragile in the face of economic changes.255 The poor are generally defenceless against misfortunes: High prices for basic foodstuffs have pushed millions more people into hunger and poverty since the major price spike in 2007/2008. The WFP explained that ‘high food prices are creating the biggest challenge that the WFP has faced in its 45-year history’ and called the price spike a ‘silent tsunami’.256 250 251 252

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See, inter alia, the admonition in para. 38 of the observations (ibid.). HRC, Compilation prepared by the OHCHR on Nigeria, Working Group on the UPR, Fourth session Geneva, 2-13 February 2009, A/HRC/WG.6/4/NGA/2, p. 3. Court of Justice of the ECOWAS, Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, decision of 14 December 2012, Judgment No. ECW/CCJ/JUD/18/12, para. 104. The effect of high food prices on the poor is analysed in detail by Compton/Wiggins/ Keats. The Right to Food Guidelines, Information Papers and Case Studies, FAO, Rome 2006, p. 11. The influence of buyer power on the right to food is also interesting (examined by Ganesh, pp. 1190ff.), as is the role of international trade in the light of food crises (analysed by Kaufmann/Grosz, Poverty, Hunger and International Trade). Sen, Development as Freedom, p. 172. News Report by the WFP, ‘WFP says high food prices a silent tsunami, affecting every continent’, 22 April 2008, available at www.wfp.org/news/news-release/wfp-says-highfood-prices-silent-tsunami-affecting-every-continent.

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A striking example is the Bengal famine of 1943, when people died in front of well-stocked food shops.257 The rural Bengal famine was initiated by two below-average rice crops, in 1942/1943.258 These led to a serious shortage of rice available for consumption in Bengal – far lower than the total supply normally available. The crop failure reduced the purchasing power of large sections in the rural population. Competing demand drove food prices ever higher, placing food out of the reach of many people.259 Sen explains these economic processes concisely: When the purchasing power of some occupational groups increases, […] others who have to buy food may be ruined because the real purchasing power of their money incomes may have shrunk sharply. […] Once the rice prices started moving up sharply, public panic as well as manipulative speculation played its part in pushing the prices sky high, beyond the reach of a substantial part of the population of rural Bengal.260 According to Sen, the famine occurred without a fall in total food supply, and access to food was denied because the hungry lacked legal entitlement.261 Similarly, the Famine Inquiry Commission reported that traders bought, held and sold rice to obtain maximum profits. Those ‘on the right side of the fence’ profited and bought as much rice as possible, but those on the ‘wrong’ side couldn’t pay such high prices.262 About 1.5 million people died during the Bengal famine in 1943, despite the stockpiles of grains in Calcutta and other

257 258

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Sen, Poverty and Famines, p. 49. Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, p. 77. The crop failure was caused by a combination of roots (cyclone, floodings, fungus disease, disruption of war, and the loss of Burma rice). For details, see Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, pp. 3233; Sen, Poverty and Famines, pp. 52ff. Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, pp. 77-78; Sen, Development as Freedom, p. 167. Sen, Development as Freedom, p. 167. Ibid., p. 172. For a critic on Sen’s analysis of the Bengal famine, see Tauger, Entitlement, pp. 45-72; Padmanabhan, pp. 11-24; Goswami; Dipak. A short overview of the sought explanations for the famine is provided by instance Dando, Bengal Famine, pp. 141-143. Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, p. 83.

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regions.263 The Famine Inquiry Commission concluded that the ‘[f]amine, in the form in which it occurred, could have been prevented by resolute action at the right time to ensure the equitable distribution of available supplies’.264 The state failed to ensure an adequate food supply was available to all segments of the population and to appropriately regulate private actors, namely investors. Even though nation states may not play an active role in private market processes, they must protect the population from starvation, e.g., by implementing barriers that steer the economic course towards greater moderation.265 A rise in food prices means that food systems must respond to increased demand and limited supplies in a manner that protect the interests of poorer people.266 Along with the obligation of states to provide social security for those unable to feed themselves (as will be elaborated in the third chapter267), states also have to regulate private procedures that can limit people’s access to adequate food. Balancing prices of key staple cereals, such as maize, rice, and wheat, is particularly important.268 The access to affordable seeds is also covered under access to food. The Special Rapporteur on the right to food, De Schutter, analysed commercial seed systems and advised states to regulate them with policies that contribute to the full realisation of the right

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267

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Ibid., p. 99. The reported numbers of deaths diverge. For details about the mortality statistics, see the Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, pp. 108-109; critical Sen, Poverty and Famines, p. 52. Famine Inquiry Commission, Report on Bengal, New Delhi, Government of India, 1945a, p. 104. An analysis of the conflict between the right to food security and liberalised trade in agriculture is provided by Kaufmann/Heri, pp. 1057-1058. See ‘Food and Nutrition Security: Comprehensive Framework for Action – Summary of the Updated Comprehensive Framework for Action’, High Level Task Force on Global Food Security, August 2011, p. 8 (illustrating the problem with the dramatic rise in the international prices of different staple foods, particularly rice, in 2008). See on pp. 117ff. It is not possible to distinguish these two obligations strictly as they go hand in hand. For better clarity, they are still treated separately within the present analysis. Details about food prices and events in markets that affect these prices are provided regularly by the Overseas Development Institute (ODI) at www.odi.org.uk; see e.g. the Food Price Update August 2013 by Steve Wiggins/Sharada Keats (available at www. odi.org.uk/publications/7723-food-prices-october-2013-update). See also the FAO Food Price Index that monthly measures the change in international prices of a basket of food commodities (available at www.fao.org/worldfoodsituation/foodpricesindex/en).

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to food.269 De Schutter was alerted, after the massive food riots in Mozambique in 2010, to the fact that failing food systems are predictable and measures to mitigate them are known, and argued that ‘lack of political will and a lost sense of urgency have unacceptably delayed decisive action’.270 Responses to speculations on food prices and the resulting manipulation of markets are particularly challenging. The effective impact of index investment (speculation) on futures markets for maize and wheat is still a matter of debate.271 But even if one takes the position that the price spike in 2008 was not caused by food speculation (but instead by supply, demand, currency values and trade policy), the impact of investment in food on the market price of food cannot be denied.272 De Schutter wrote, […] there is a reason to believe that a significant role was played by the entry into markets for derivatives based on food commodities of large, powerful institutional investors such as hedge funds, pension funds and investment banks, all of which are generally unconcerned with agricultural market fundamentals.273 He explained that such entry was possible because important commodity derivatives markets were deregulated in 2000. To avoid price increases and

269 270

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Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, A/64/170, 23 July 2009 (recommendations in paras. 56-57). Press release on food riots: ‘Predictable crisis, unprepared governments’, by the Special Rapporteur on the Right to Food, from 7 September 2010, available at www.ohchr.org/ en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10308&LangID=E. For details, see Wiggins/Keats, pp. 2-3; Price Volatility in Food and Agricultural Markets: Policy Responses, 2 June 2011, by FAO/WFP/World Bank/WTO et al. (available at www.worldbank.org/foodcrisis/pdf/Interagency_Report_to_the_G20_on_Food_Price_ Volatility.pdf). For an overview of opinions that deny commodity speculations have a negative effect, see Will/Prehn/Pies/Glauben. See, for instance, World Bank economist, Baffes, pp. 517-525; the Report by the World Development Movement, The Great Hunger Lottery – How banking speculation causes food crises, July 2010 (available at www.worldbank.org/foodcrisis/pdf/Interagency_Report_to_the_G20_on_Food_Price_Volatility.pdf, with more in-depth research); Livingstone; Doane. For an overview of the critical views of commodity speculation by academics, see Henn. UN Special Rapporteur on the Right to Food, Olivier De Schutter, Briefing Note No. 2, September 2010, Food Commodities Speculation and Food Price Crises, p. 1. The Note is available online at www.srfood.org/en/food-commodities-speculation-and-foodprice-crises.

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higher levels of volatility, and to avert another food price crisis, he urgently demanded fundamental reform of the global financial sector.274 State inaction during ongoing food speculation with negative effects on food security violates the obligation to protect the right to food. Given the obligations elaborated above, the state has a duty to prevent such negative impact, particularly when food insecurity is already widespread.275 Admittedly, spiking food prices and food speculation are global problems that cannot be solved by a single state. Opinion is divided on the best way forward, and arriving at an answer is one of the biggest challenges the international community will face in the years to come.276 Nevertheless, it is the obligation of every single state to address the problem with all available means and to join with other states to find appropriate solutions.277 b) Land Grabbing Land grabbing is the act of taking an area of land by force, for military or economic reasons.278 This definition covers land acquisition by foreign companies or state agents, and by local farmers and private residents. The issue of land grabbing was introduced with the example of forced evictions of white farmers in Zimbabwe, ordered by President Mugabe in 2002, which caused mass starvation.279 It was further elucidated that the Ugandan government leased land to a private company, and then forcibly evicted indigenous customary tenants without adequate compensation.280 There exist many similar decisions that address the state’s failure to acknowledge or protect property

274 275

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278 279 280

Ibid. The Dodd–Frank Wall Street Reform and Consumer Protection Act (so called ‘Dodd Frank Act’) that was signed into US federal law by US President Barack Obama on 21 July 2010, for instance, attempted to impose limits on commodity market speculations (Public Law No. 111-203, H.R. 4173). The World Bank attempted to address food price volatility; see their 2012-22 Social Protection and Labour Strategy (Banerji/Rawlings, p. 38). See also Glauben/Pies/Prehn/ Will. States are expected to use their influence with other states and within multinational institutions to fulfil their duty to protect (see Ruggie-Principles, Principles 9-10; see also Lindsay/McCorquodale/Blecher et al., p. 8). See the definition from the Cambridge Business English Dictionary, CUP, available online at http://dictionary.cambridge.org/. See on p. 43. High Court of Uganda, Baleke and 4 Others v. Attorney General and 2 Others, Civil Suit No. 179 of 2002, Judgment of 28 March 2013.

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rights of indigenous communities.281 Access to land and security of tenure are essential for the enjoyment of the right to food, since the plants and animals that make up the world’s food supply depend on soil to grow.282 Since many farmers are already unable to produce enough to provide their families with sufficient food, losing their land may ruin them completely.283 But the issue is not necessarily one-sided as it might seem at first glance. The complexity of the problem is illustrated with the following South African case: Because of overcrowded conditions in a South African township in the 1990s, some residents settled on the strip of land between the township and a private farm owned by Modderklip.284 The municipality reacted by evicting the residents of this informal settlement, and about 400 of them then moved onto Modderklip’s farmland. The number of unlawful occupiers grew while Modderklip unsuccessfully sought assistance from the City Council. By October 2000, there were approximately 4,000 residential units on Modderklip’s property, occupied by about 18,000 persons.285 While the City Council, inter alia, demanded that Modderklip institute eviction proceedings against the unlawful occupiers, Modderklip refused to do so, and claimed that it was the Council’s responsibility to evict the occupiers. No help was forthcoming from any organ of the state he approached, and the Council did not even respond to Modderklip’s offer to sell the unlawfully occupied part of the farm to the municipality.286 The Constitutional Court of South Africa held that the state failed to progressively ensure access to housing or land for the homeless.287 It found it

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285 286 287

See, inter alia, the two decisions by the Inter-American Court of Human Rights: Case of the Indigenous Community Yakye Axa v. Paraguay (decision of 17 June 2005) and the Case of the Sawhoyamaxa Indigenous Community v. Paraguay (decision of 20 March 2006); or the decision by the Inter-American Comission on Human Rights of 25 March 1998, Enxet-Lamenxay and Kayleyphapopyet (Riachito), Case No. 11.713, Report No. 90/999. Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, on ‘Access to Land and the Right to Food’, A/65/281, 11 August 2010, pp. 3-4. Vaughn points out that ninety percent of the food supply throughout the world comes from only 15 plants and eight animal species (Vaughn, p. 367). Cf. also Haugen, p. 1180. See the factual background in the decision of the Constitutional Court of South Africa of 13 May 2005, President of the Republic of South Africa and Anor. v. Modderklip Boerdery (Pty) Ltd 40 2005 (5) SA 3 (CC), para. 3. Ibid., paras. 6. Ibid., paras. 4-6. Ibid., para. 49.

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[…] unreasonable for a private entity […] to be forced to bear the burden which should be borne by the state of providing the occupiers with accommodation. Land invasions of this scale are a matter that threatens far more than the private rights of a single property owner.288 The state should have taken reasonable steps to relieve Modderklip, e.g. by expropriating the property and paying him appropriate compensation, or by providing other land.289 The court finally ruled that Modderklip was entitled to payment of compensation, and that the unlawful residents are ‘entitled to occupy the land until alternative land has been made available to them by the state’290. This decision dovetails with the Concluding Observations of the Committee on ESCR on Nigeria, which urged the government […] to cease forthwith the massive and arbitrary evictions of people from their homes and take such measures as are necessary in order to alleviate the plight of those who are subject to arbitrary evictions or are too poor to afford a decent accommodation.291 The Committee also demanded that the Nigerian government allocate adequate resources and make a sustained effort to address the serious shortage of housing.292 These cases demonstrate that one of the main priorities in addressing food insecurity is urging governments to protect individual resources, and ensuring that non-state actors, including private sector actors, respect land rights, including customary land tenure arrangements.293 To protect food security, governments must actively ensure the land rights of endangered peoples (usually the indigenous population) and clarify small-holders’ titles to their land, so that both groups attain maximum self-reliance and can earn an adequate living.294 The fact that many people still do not possess a formal title to their property poses a particular problem. Arts. 14-19 of the Indigenous and

288 289 290 291 292 293 294

Ibid., para. 45. Ibid., para. 51. See also paras. 59 and 65 on the appropriate type of compensation. Ibid., para. 68. Concluding Observations of the Committee on ESCR: Nigeria, 13 May 1998, E/C.12/1/ Add.23, para. 42. Ibid. The study by the World Bank also supports this: Deininger/Byerlee. Whitaker, p. 1588.

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Tribal Peoples Convention295 demand that indigenous rights to natural resources on and around their lands be specially safeguarded. The UN Declaration on the Rights of Indigenous Peoples also establishes, in art. 26, the right of indigenous peoples to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired (para. 1), and a right to own, use, develop and control these lands (para. 2).296 In addition, arts. 1 (2) of both the ICCPR and the ICESCR stipulate that a people may ‘in no case [...] be deprived of its own means of subsistence’. Particularly designed to protect women, art. 14 (2) (g) CEDAW demands that states take all appropriate measures to eliminate discrimination against women in rural areas, and to ensure women’s right to equal treatment in land and agrarian reform, and in land resettlement schemes.297 As the cases I discussed demonstrate, governments frequently fail to sufficiently protect their people’s land rights. Their inactivity often serves political ends, e.g. financial incentives; it is discouraging that recognising fewer land rights increases a country’s attractiveness for powerful interests who want to acquire land.298 This kind of inactivity violates the state’s obligation to protect the right to food. States must actively prevent land grabbing, and land reforms and land conservation policies are explicitly demanded by art. 11 (2) (a) ICESCR. De Schutter compiled the minimum human rights principles applicable to large-scale land acquisitions or leases.299 Land grabbing is also addressed in the FAO Voluntary Guidelines, Nos. 2.5, 2.6 and 8. States, inter alia, must create mechanisms to protect vulnerable groups against evictions and create mechanisms of sanction and compensation for evictions already 295

296 297 298 299

Indigenous and Tribal Peoples Convention, Convention No. 169 of 1989, adopted by the General Conference of the International Labour Organization (ILO) on 7 June 1989. Full text available at www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_100897.pdf. Adopted by GA Res. 61/295, 13 September 2007. See also arts. 8 (2) (b), 10, 27-30, 32 of this Convention. See also the Protocol to the Banjul Charter on the Rights of Women in Africa explicitly stating in art. 15 on the right to food security that access to land must be provided (lit. a). Deininger/Byerlee, p. 55. For an analysis on the development opportunities of international land deals, see Cotula/Vermeulen/Leonard/Keeley. Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, A/HRC/13/33/ Add.2, 28 December 2009, Annex; Special Rapporteur on the Right to Food, Olivier De Schutter, Large-Scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge, 28 December 2009, A/HRC/13/33/Add.2. See also De Schutter, How not to think of land-grabbing, pp. 249–279; Borras/Hall/ Scoones/White/Wolford, pp. 209-216.

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effected.300 States also have to implement the security of land tenure and guarantee vulnerable and disadvantaged groups access to, use and ownership of natural and productive resources.301 The ‘Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security’302 endorsed by the Committee on World Food Security (CFS) help to set standards that governments can use to safeguard the rights of people to own or access land, forests and fisheries.303 In response to growing popularity of the ‘corporate social responsibility agenda’, Codes of Conduct for land grabbing have been proposed.304 As with food prices, land grabbing and large-scale land deals brokered by international companies can only be addressed on a global level.305 States cannot effectively solve the problem alone. The endorsement of the ‘Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security’ already signals some success for international consensus-building on land tenure, and might help contribute to a more sustainable future.306 Even though collaboration among the international community is required to address these problems, every single state is obligated to tackle the issue as best it can within its territory, by using all available means. .

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Basic Principles and Guidelines on Development-Based Evictions and Displacement, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, A/HRC/4/18, 5 February 2007, Annex, para. 17. See also Committee on ESCR, General Comment No. 7 on Forced Evictions and the Right to Adequate Housing, E/1998/22, 20 May 1997, Annex IV; Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, E/CN.4/2004/48, 8 March 2004. Coomans/Yakpo, p. 27. The guidelines were officially endorsed by the CFS on 11 May 2012 and are available at www.fao.org/fileadmin/user_upload/newsroom/docs/VGsennglish.pdf. For details, see the article by the FAO ‘Countries adopt global guidelines on tenure of land, forests, fisheries’ (11 May 2012) and the FAO Brochure on ‘Governance of Tenure From Finding Common Ground to Making it Happen’ (both available at www.fao.org/ news/story/jp/item/142587/icode). See, pars pro toto, Borras/Franco, pp. 507-523. For a critical view, see Altschuller, that describes the non-binding codes of conduct as ‘corporate philanthropy’ (ibid.). For the obligations of states to cooperate with other states, and within multinational institutions, see Ruggie-Principles, Principles 9-10. See also the great expectations associated with these guidelines voiced by da Silva (ibid.).

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Deliberate Starvation Evoked by Passive Conduct of a State in Vulnerable Situations

Though famines caused by armed conflicts or other man-made disasters (e.g., chemical disasters, nuclear explosions) were the subject of the last chapter, few famines are caused solely and directly by human beings.307 Most famines result from, and are exacerbated by, natural disasters such as earthquakes, windstorms, floods, and droughts.308 Though the progress of industry and destruction of the environment may have contributed to climate change, no single party can be accused of creating the condition of famines that result from natural disaster.309 However, even when the state plays no role in creating these extraordinary circumstances, its subsequent inactivity may allow a famine to continue or to spread.310 Despite the fondness of media for images of cracked earth and withered crops, implying the progress of forces beyond human control, prevention or alleviation even of famines in environmentally precarious regions is often entirely within human control. In such cases, however, governments can make politically rational, though ethically indefensible, decisions to remain inactive.311 Famines usually develop slowly enough that they can be predicted, and governments often have time to adapt their national policy to altered circumstances.312 For example, the famine that began in the Horn of Africa, in the summer of 2011, was predicted months in advance by experts, who warned of the results of drought in Somalia, Ethiopia and Kenya.313 These warnings should have been taken seriously, and preventive measures should have been adopted to avoid the subsequent famine. In 307

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See, inter alia, the 2011 ECOWAS Charter for Food Crisis Prevention and Management in the Sahel and West Africa, which declares the food crisis in the Sahel and West Africa was created by a combination of structural, cyclical, natural and human factors (para. 1.3 [‘Aware’], arts. 1-2). Devereux, Famine in the Twentieth Century, p. 13. An analysis of different famines in history is provided by Sen, Poverty and Famines, pp. 52ff.; see also in detail Kaufmann, Hunger als Rechtsproblem, pp. 3-44. On the climate change and its impact on human rights, see De Schutter, Climate change is a human rights issue. For a list of the causal triggers of the major 20th century famines, see Devereux, Famine in the Twentieth Century, p. 6. Devereux speaks of ‘complex negative synergies between natural triggers […] and political culpability’ (ibid., p. 3). See also Marcus, p. 245; Plümper/Neumayer, pp. 12ff.; Devereux, Famine in the Twentieth Century, p. 6 (pointing out that the direct link from drought or flood to famine can be broken, since famines have often been successfully averted). Devereux, Famine in the Twentieth Century, p. 27. See, for example, Salama, pp. 13-19; Grefe.

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the words of Christiane Grefe: ‘Die Naturkatastrophe mag Schicksal sein – der Hunger ist es nicht.’314 The situation is summed up in her cynical expression of ‘catastrophe with announcement’.315 Ethiopia has suffered from a severe famine in 1983–85.316 The Ethiopian government blamed the drought for the mass starvation that followed, but by the time the drought began, the famine was already well under way, reportedly created by the Mengitsu regime’s economic policies.317 The Ethiopian government took advantage of the severe drought to starve insurgent populations in Tigray and Wollo.318 Though I will discuss the use of starvation as a weapon of war later,319 it is significant to this chapter that the Ethiopian government predicted the effects of its economic plans, even before food shortages escalated into famine. The Dergue that ruled Ethiopia refused to reconsider its policies, and did nothing to assist the population in the regions hit by drought and harvest failure.320 This section focuses on states that remain inactive, though they recognise that prevailing conditions may bring about a famine. Instead of changing current regulations or taking necessary measures to prevent starvation, they turn the disaster to their own purposes: A famine can arrive at the opportune moment to further a state’s objectives. In contrast to actively inflicted starvation, which can be addressed in a straightforward fashion by corrective justice, proscription of passive behaviour in the face of starvation is a more complex problem, and adjudicating it poses many obstacles. To proscribe this behaviour, we must acknowledge the existence of a positive right to food that requires a form of distributive, or even redistributive justice to fulfil.321 As the examples of China and DRK made clear, redistributive power opens the doors to its potential abuse.

314 315 316

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‘Natural disasters may be fate – but hunger is not.’ [This is the author’s translation], Grefe, p. 1. [This is the author’s translation.] See Grefe, p. 1. Ethiopia has already before this 1983–85 famine repeatedly suffered mass starvation. The famines of 1973-5, for instance, killed at least 40,000 people in Wollo (Africa Watch, Evil Days: Thirty Years of War and Famine in Ethiopia, 1991, p. 5). Ibid., pp. 132ff. Marcus, pp. 255ff.; Africa Watch, Evil Days: Thirty Years of War and Famine in Ethiopia, 1991, pp. 131ff. Active state policies that result in starvation were dealt with in the first chapter above on pp. 64ff. See below on pp. 161ff. Marcus, p. 258. De Waal, p. 9.

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I herein address the urgent case of failure to provide humanitarian assistance in extraordinary circumstances of natural or man-made disasters, i.e. the deliberate decision not to undertake disaster relief operations. I also address deliberate state inaction in ordinary situations: These are cases in which countries fail to ensure the social security of vulnerable social groups whose starvation is caused by reasons unrelated to an emergency (for example due to austerity measures, unemployment, disabilities, orphan hood or retirement).322 Only few states grant entitlement to a level of social security sufficient to ensure universal access to adequate food, but manipulating social insecurity as a means to an end is rare in practice. It may be deployed, for example, as a means to annihilate a targeted population that is already confined to a low social class.323 In both these categories of state inactivity, the population’s dependence on food aid324 is clear. Food aid is particularly susceptible to manipulation for political gain, since its delivery is often used to curry favourable opinions, and it can also be manipulated (as when aid is conditional) to privilege or punish certain groups.325 Governments are most likely to muster the resources to prevent large scale famine if they have political incentives to direct resources to the affected. Provision of food assistance to the subjects of autocratic states is a challenge, since these governments have less incentive to help affected populations than do democratically elected governments.326 Both forms of neglect are based in a similar legal context, and so I examine them jointly (3.1), and then separately discuss the practical implications, challenges and associated customs of the international community (3.2). The emergence of a famine is a highly complex interplay between multiple contributory factors, and an interdisciplinary approach is needed to ex-

322

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The 2011 ECOWAS Charter for Food Crisis Prevention and Management in the Sahel and West Africa refers to such cases as ‘chronic food insecurity’ while the aforementioned situations can be labelled as ‘temporary or transitory food insecurity’ (ibid., para. 5.2, art. 1). Details about this so-called ‘Social Darwinism’ will be provided in the relevant chapter below (see particularly on p. 137). As a reminder, within the scope of this analysis the terms ‘humanitarian assistance’ and ‘humanitarian aid’ are used as synonyms referring to support to respond to emergency food situations. The terms ‘food aid’ and ‘food assistance’ are synonymously used as umbrella terms including also support to respond to everyday food needs (mainly in developing countries). The use of humanitarian aid as a political tool is described e.g. in Williamson. Plümper/Neumayer, pp. 19-20.

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amine the conditions that lead to and result from it.327 Since the theories I have adopted from political, economic, social and natural sciences are not confined within the borders of this analysis, I offer a simplified description below. 3.1 The Obligation to Fulfijil The positive obligations of states to fulfil the right to food are addressed first (a). Next, I examine the obstacle of progressive realisation, and further impediments to the full implementation of this obligation to act (b). a) Positive Obligations It is primarily people’s own responsibility to feed themselves with their own means. De Schutter points out that the right to food is not ‘a right to be fed’, but, instead, a ‘right to feed oneself’.328 It would be incorrect to interpret the right to food as the obligation of governments to hand out free food to anyone who wants it. Individuals should primarily meet their own needs through their own efforts and using their own resources.329 The following deliberations about deliberate starvation caused by state failure should be interpreted accordingly. The Committee on ESCR has emphasised that only when ‘an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly’.330 From an economic point of view, it is useful to frame starvation as an ‘entitlement failure’: The entitlement to food then becomes ‘the ability to command food through the various forms of exchange relationships to which one has access.’331 Sen describes three basic forms of food entitlement: 1) access to resources to collect or to produce food; 2) the exchange of resources for food; and, 3) the receipt of grants of food or the resources to procure food.332 By this definition, lack of food is not the primary problem posed by food insecurity; the primary problem is that those

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328 329 330 331 332

For a lucid analysis of the different theories of famine causation, see Devereux, Famine in the Twentieth Century, pp. 15-23. He shows that the theories invariably reflect the academic biases of their proponents (ibid., pp. 15-16). Olivier De Schutter, Information Page on the Right to Food, www.srfood.org/en/rightto-food, para. 2. OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, p. 3. Committee on ESCR, General Comment No. 12, para. 15. Whitaker, p. 1587. For details, see Sen, Poverty and Famines, pp. 1-7.

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who are starving are not entitled to command food.333 The UN World Food Programme (WFP), the world’s largest humanitarian organisation, realised that the problem was often that food was inaccessible, rather than unavailable. Where people do not possess the means to buy food (for example, in Palestine), WFP distributes cash and vouchers instead of food.334 Nutritious Food There is increasing debate about the need to provide a standard of nutrition as opposed to providing the minimum calories necessary to survival.335 This is a welcome shift, since nutritional deprivation has serious consequences, and can also be purposely applied to political ends. This extension of responsibility meshes with the Committee on ESCR’s declaration that the core content of the right to adequate food is the availability of the quantity and quality of food needed to satisfy the dietary needs of individuals.336 Children are especially vulnerable to the adverse effects of malnutrition, so states should, at a minimum, take all necessary measures to reduce infant mortality and to eradicate malnutrition among children.337 Webb and Thorne-Lyman’s adaptation of Sen’s entitlement approach is particularly interesting, and has shaped the current recognition of the substantive role played by vitamin and mineral deficiencies in shaping crisis-related 333 334

335

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For a critical debate about Sen’s entitlement approach, see Devereux, Sen’s Entitlement Approach. Ertharin Cousin (WFP), Delivering Food Assistance in a Shrinking Humanitarian Space, lecture for the Department of International Development LSE, from 17 September 2013. For details about the WFP’s Cash and Voucher Programme, see www.wfp.org/ cash-and-vouchers. The evolution of the focus on specific nutrient deficiencies is explained by Allen L. (see, inter alia, Allen L., Ending Hidden Hunger; Allen L., Interventions for Micronutrient Deficiency Control, pp. 3875S-3876S). See also the recent GSF (for details, see the FAO Factsheet, ‘The Human Right to Adequate Food in the Global Strategic Framework for Food Security and Nutrition – A Global Consensus’, Rome: FAO 2013, available at www. fao.org/docrep/019/i3546e/i3546e.pdf). Committee on ESCR, General Comment No. 12, para. 8. The HR Committee stated on the basis of art. 24 ICCPR: ‘[E]very possible economic and social measure should be taken to reduce infant mortality and to eradicate malnutrition among children’ (HR Committee, General Comment No. 17 on Art. 24 [Rights of the Child], 7 April 1989, para. 3). See also art. 24 (2) (c) of the Convention on the Rights of the Child and the UN Committee on the Rights of the Child, General Comment No. 15 on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24), CRC/C/GC/15, 17 April 2013, paras. 43-47 (recommending, inter alia, school feeding that ensures all pupils have access to a full meal every day [ibid., para. 46]).

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morbidity and mortality.338 Webb and Thorne-Lyman argue that entitlement failure should be addressed by a focus on both food quantity and diet quality with the goal of improving the life-chances of affected people. They go beyond Sen’s emphasis on prices and markets, and ask for equal consideration of the domains of public health and nutrition. Poor quality food diminishes the capacity of individuals to cope with entitlement failure; malnourished people are weak and at higher risk of mortality in the case of an emergency. On these grounds, they demand entitlements to prevent so-called ‘hidden hunger’.339 The Supreme Court of India, for example, urged the Indian government to both provide sufficient food to prevent starvation, and to save the people ‘from malnutrition as far as possible’.340 Together with various other exemplary measures, the court ordered in 2001 that the state provide daily cooked, hot and nutritious lunches in primary schools to facilitate the healthy growth of children.341 This was a long step towards an ‘entitlement to good nutrition’. Nevertheless, Drèze warns that it is hard to translate the right to food into a specific list of entitlements, since good nutrition depends in complex ways on a wide range of inputs (including clean water, basic health care, and good hygiene); the exact constituents of good nutrition are a matter of debate among nutritionists.342 Furthermore, the nutrition indicators improve only slowly, over time. India’s undernutrition levels are still among the highest in the world, and ‘the right to food is nowhere near being realized in India’.343 Obligation to Facilitate and to Provide The obligation of states to fulfil the right to food corresponds with the obligation ‘to take steps’ up to the maximum of their available resources.344 Hence, art. 2 (1) in conjunction with art. 11 ICESCR establish a state’s duty to 338 339 340 341

342 343 344

Webb/Thorne-Lyman, pp. 5-6. Ibid., pp. 5-9. Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, Writ Petition Civil No. 196/2001, Order of 14 May 2011, p. 11. Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, Writ Petition Civil No. 196/2001, Order of 28 November 2001, para. 3. For details about the Supreme Court Orders on the right to food see the Right to Food Campaign Secretariat, Supreme Court Orders on the Right to Food – A Tool for Action, 2nd edition, New Delhi, August 2008, available at www.righttofoodindia.org/data/scordersprimeratoolforaction.pdf. Mid-day Meals and their wider significance are analysed by Drèze, pp. 60-63. Drèze, p. 55. Ibid., p. 63. Golay, The Right to Food and Access to Justice, p. 18.

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progressively ensure the full realisation of the right to food through all appropriate means. As indicated earlier, this obligation to fulfil consists of two aspects: First, it implies that states should facilitate people’s access to food by strengthening the ability of individuals to feed themselves by their own means. States must ensure an environment of reliable livelihood and food security.345 This entails the duty to take positive measures to ensure that all individuals have access to productive resources or means (such as land, water, seeds, microcredit or livestock).346 Second, states have the obligation to provide access to food directly to individuals who are unable to feed themselves for reasons beyond their control.347 States must implement social safety nets to assist the most vulnerable members of society, such as children, the elderly, the unemployed or the disabled.348 Because adequate nutrition is particularly important for healthy foetal and infant development, direct nutrition interventions for pregnant women and infants are required by art. 24 (2) (c) of the Convention on the Rights of the Child.349 Support may consist of monetary or food resources. Particularly in emergency situations, such as natural catastrophes or armed conflicts, the state shall provide food assistance to persons without access to food.350 Eide suggests that, as a minimum, all governments should establish a nation-wide 345 346 347 348

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Committee on ESCR, General Comment No. 12, para. 15. Golay, The Right to Food and Access to Justice, p. 18; see also FAO Voluntary Guidelines, Guideline 8. Committee on ESCR, General Comment No. 12, para. 15. Golay, The Right to Food and Access to Justice, p. 18; Committee on ESCR, General Comment No. 12, para. 13. The Food Insecurity and Vulnerability Information and Mapping Systems (FIVIMS, mandated by the WFS) provide detailed information about food insecurity and vulnerability on global and national levels (for details, see the Report on the Development of Food Insecurity and Vulnerability Information and Mapping Systems, CFS, 24th Session, Rome, 2-5 June 1998, CFS: 98/4). Art. 24 (2) (c) of the Convention on the Rights of the Child expressly obligates all state parties to take all necessary measures to combat malnutrition of children. See also HR Committee, General Comment No. 17, 7 April 1989, para. 3; UN Committee on the Rights of the Child, General Comment No. 15 on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24), CRC/C/GC/15, 17 April 2013 (particularly paras. 43-47). See, inter alia, the decision by the Supreme Court in Nepal that ordered immediate provision of food in districts that food distribution programmes were not reaching (Prakash Mani Sharma and others on behalf of Forum for Protection of Public Interest [Pro Public] v. Prime Minister and Office of Council of Minister and Others, Writ Petition No. 0065-w0-149 of 2065 BS, 2008; Pro Public v. Government of Nepal, Writ Petition No. 0149/065, Decision of 19 May 2010).

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system to identify local needs and opportunities for the enjoyment of ESCR. He points out that no general model will apply in all settings, and that different governments may find different approaches most suitable to address the identified vulnerability of their particular societies.351 Whatever suitable approach is chosen, the state must adopt a national strategy to ensure food and nutrition for all.352 Obligation to Fulfijil Civil and Political Rights The positive obligation to fulfil also applies to CPR – notably the right to life.353 It is obsolete to define the right to life only as a duty to refrain from the arbitrary taking of life.354 Art. 2 (2) ICCPR demands that each state party to the Covenant ‘undertakes to take the necessary steps [...] to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant’. In particular, art. 6 ICCPR requires states to take positive measures to protect the lives of individuals under their jurisdictions, and thus to assist them if they are deprived of the means to protect their lives through their own efforts.355 Similar steps are required by art. 3 UDHR.356 Nevertheless, Sepulveda stresses that the well-established duty of states to ensure the satisfaction of the requirements necessary for sustaining life for individuals being held in custody should be distinguished from the obligation

351 352

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Eide, Strategies for the Realization of the Right to Food, pp. 468-469. Committee on ESCR, General Comment No. 12, para. 21; FAO Voluntary Guidelines, Guideline 3; Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, paras. 42-46 HR Committee General Comment No. 31, para. 6; Nowak, art. 2, para. 19 and Introduction, para. 3; De Schutter, International Human Rights Law, p. 461. See the discussion of positive obligations as regards the obligation to protect on pp. 80f. See, for instance, the recent case of the Inter-American Court, which held that ‘the right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence [...]’ (Villagran Morales et al. v. Guatemala, Judgment of 19 November 19999, Series C No. 77, para. 144). For details about the concept of arbitrariness, see Ramcharan, The Concept and Dimensions of the Right to Life, pp. 19ff. Sepulveda, pp. 146ff.; Nowak, art. 6, para. 5; Peters/Altwicker, paras. 9-10, paras. 15ff. See also Decaux, pp. 315-350. OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008. See, in particular, the list of illustrative indicators of the right to life, in Annex 1, which measure, inter alia, national policies on health and nutrition.

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to guarantee access to the means of the survival of all deprived people under the jurisdiction of a state, which is, as yet, not clearly consolidated.357 International supervisory bodies have been very cautious when examining individual petitions, and have not generally interpreted the right to life as imposing an obligation to provide assistance for preserving life.358 However, international bodies increasingly rely on the right to life to impose obligations to provide for people condemned in desperate situations to hunger, if they were given no support.359 The Inter-American Commission on Human Rights, for instance, authorised precautionary measures to provide humanitarian assistance for indigenous communities in Guatemala, where people lived in precarious conditions, without access to food and water after a forcible eviction. It held that state agencies failed to provide them with shelter or food, and requested that the state of Guatemala take necessary measures to guarantee the life and physical integrity of indigenous community members.360 A far-reaching approach was also adopted by the HR Committee in 1982: In its General Comment No. 6, the Committee emphasised that protection of the right to life requires states take positive measures and subsequently advised the state parties ‘to take all possible measures to reduce infant mortality and increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’.361 Since then, the Committee has

357 358

359 360

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Sepulveda, p. 149. See, inter alia, the decisions of the ECtHR, D. v. the UK, Application No. 146/1996, Judgment of 2 May 1997, paras. 55ff.; or Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, para. 219. Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, para. 18. Precautionary Measures against Guatemala, 20 June 2011 (PM 121-11 − 14 Q’echi Indigenous Communities of the Municipality of Panzós, Guatemala). See also the similar case of the Inter-American Court of Human Rights that addressed a neglected landless indigenous community in Paraguay, in which the court found the right to life was violated (p. 105, para. 3), and ordered the state to ‘deliver to them the basic supplies and services necessary for their survival’ for as long as they remain landless (p. 106, para. 9; Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006). Both documents are available at www.oas.org/en/iachr/indigenous/decisions/ ia_court_hr.asp. HR Committee, General Comment No. 6, para. 5.

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been consistent in this position362 – though it is still reluctant to deal with individual complaints.363 Academic opinion and literature,364 as well as national jurisdictions365 affirm the positive dimension of the right to life. In the impressive example set by the Supreme Court of India, the court also derived from the right to life the expansion of social programmes to ensure minimum nutrition and efficient protection against hunger for particularly vulnerable groups (infants, disabled persons, elderly, single woman-headed households etc.).366 The court, inter alia, ordered that adequate food grains be distributed to the 150 poorest districts and to extremely vulnerable sections of society on a priority basis.367 This case is exemplary because it gave instructions on the exact form the provision of food assistance should take, delineating effective safeguards from

362

363 364

365

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See HR Committee, General Comment No. 28 on Art. 3 (The Equality of Rights between Men and Women), CCPR/C/21/Rev.1/Add.10, 29 March 2000, para. 10 (on measures taken by the state to prevent women’s death); or, as an example of an examination of a state’s reports, see the Concluding Observations Canada CCPR/C/79/Add. 105, 7 April 1999, para. 12. For further details, see Sepulveda, p. 150. E.g. Plotnikov v. Russian Federation, Communication No. 784/1997, inadmissibility decision of 25 March 1999. See Sepulveda, p. 150. See Ramcharan, The Concept and Dimensions of the Right to Life, p. 17; Sepulveda, pp. 152-153. About the general obligation to fulfil CPR, see De Schutter, International Human Rights Law, p. 461. See, inter alia, the cases of the Supreme Court of India, Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another (1996 AIR SC 2426 at 2429) or Olga Tellis and others v. Bombay municipal Corporation (AIR 1986 Supreme Court 180); the Judgment of the Political and Administrative Chamber of the Venezuelan Supreme Court, Judgment No. 916 (Sentencia de la Sala Expediente No. 15.789, Sentencia No.  916.); the Judgment of the Swiss Federal Court, 27 October 1995, No. 121 I 367. A consideration of the theme can also be found in the case of the Constitutional Court of South Africa, Soobramoney v. Minister of Health (Kwazulu-Natal), Case CCT 32/97, 27 November 1997, paras. 3ff. (printed in Steiner/Alston/Goodman, pp. 329ff.). Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, Writ Petition Civil No. 196/2001, Order of 14 May 2011. See also the decision of the High Court of Delhi from 6 April 2010, Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C), No. 8853 of 2008 (addressing India’s high rate of maternal mortality and deriving from the protection of the right to life a right of the mother to receive a minimum standard of treatment and care, and the right to nutrition and medical care of a newly born child until the age of six years). Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, Writ Petition Civil No. 196/2001, Order of 14 May 2011, p. 7.

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which other states can learn.368 International supervisory bodies should take these developments into account, in recognition of the obligation to fulfil the right to life. This would strengthen individuals’ access to positive food aid measures by recourse to the more effective enforcement of CPR. The right to life and further CPR require, at least to a certain extent, that some measures be adopted to ensure access to essential food. The importance of the prohibition of inhuman or degrading treatment, as enshrined in art. 7 ICCPR and art. 3 ECHR, and its relation to socio-economic conditions, is increasingly debated.369 Perhaps the desire to base acknowledgement of a general obligation to provide food on this traditional CPR is utopian. But positive state obligations to ensure resources sufficient to cover essential needs has been gaining ground when applied to persons who have a special relationship with the state, such as detention, extradition or asylum.370 The decision of the ECtHR was remarkable, in which Greek authorities were held responsible for inaction in the case of an asylum seeker who lived in the street without any means of support.371 The court stated that living conditions of extreme material poverty (inter alia, the lack of food) were severe enough that they fell within the scope of art. 3 ECHR.372 The court emphasised that members of particularly underprivileged and vulnerable population groups needed special protection,373 and considered the applicant’s living conditions indicative of ‘humiliating treatment showing a lack of respect for his dignity’.374 The prohibition of discrimination – laid down by arts. 2 (1) and 26 ICCPR, art. 14 ECHR, art. 1 (1) ACHR and art. 2 Banjul Charter – may also generate positive obligations.375 Art. 26 ICCPR, for instance, prohibits discrimination and requires state parties to protect against discrimination by taking positive measures. The obligation of protection does not solely refer to the rights of the Covenant, but to every form of discrimination. Hence, ‘effective protection’ carries with it the message that absence of adequate measures in the event 368

369 370 371 372 373 374 375

The Special Rapporteur on the Right to Food calls it ‘to this date the most spectacular case of a court protecting the right to food’ in his Report to the GA (A/68/288, 7 August 2013), para. 23. See the details on p. 29. See Nowak, art. 7, paras. 11-17; Peters/Altwicker, para. 6, paras. 9-10, 15ff. ECtHR Judgment M.S.S. v. Belgium and Greece, 21 January 2011, Application No. 30696/09, paras. 235ff. Ibid., paras. 252ff. Ibid., para. 251. Ibid., para. 263. See also the pending case in front of the ECtHR Golajan Tarakhel v. Switzerland (Application No. 29217/12, 10 May 2012). Peters/Altwicker, para. 2, No. 38.

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of concrete discrimination may violate art. 26 ICCPR.376 Prohibition of discrimination can also obligate the state to expand social programmes up to a non-discriminatory level.377 b) Only Progressive Realisation The obligation of states to fulfil the right to food is weakened by the concept of progressive realisation, set out in art. 2 (1) ICESCR. This does not, however, imply that states are allowed to remain inactive when the population is threatened by hunger. The Committee on ESCR has underlined that art. 2 (1) ICESCR does not deprive the obligation of meaningful content. This provision is intended to allow states sufficient flexibility, and it recognises that ESCR cannot be fully realised in a short period of time.378 Even if available resources are not yet sufficient, states must immediately take steps to guarantee the optimal realisation of the right to food. Member states of the ICESCR must demonstrate that they are making every possible effort, using all available resources, to better fulfil the right to food.379 The Committee on ESCR emphasises that even when resources are severely constrained, states are still obligated to ensure the widest possible enjoyment of the right to food under the prevailing circumstances, and to protect the vulnerable members of society by adopting relatively low-cost targeted programmes.380 The obligation to eliminate discrimination, the prohibition on retrogressive measures, and the obligation to provide the minimum essential level of the right to food are in immediate effect. The right to be free from hunger must always and instantly be ensured.381 A state may not, under any circumstances, remain passive in times of hunger. If a state cannot directly fulfil the right to food, it has a duty to request assistance from the international community.382 When states engage in deliberate starvation as a means to an end, starvation is a result not of their inability, but of their unwillingness to address the problem. When a state has

376 377 378 379 380 381 382

Nowak, art. 26, para. 54. See, for instance, the case of the US Supreme Court, Department of Agriculture v. Moreno, 413 US 528 (1973). Committee on ESCR, General Comment No. 3, para. 9. OHCHR-FAO Fact Sheet No. 34, on the Right to Adequate Food, p. 19; Barber, Facilitating Humanitarian Assistance, pp. 395-396. Committee on ESCR, General Comment No. 3, paras. 11-12. Ibid., para. 10. Cotula/Vidar, p. 35.

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insufficient means, there is no justification for not seeking international support.383 The Committee on ESCR is very clear: A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.384 Since the present inquiry focuses on the obligation of states to their internal population, the subsequent obligation of third states to provide international food aid is beyond our scope.385 But progressive realisation of the right to food, over time, never justifies a state’s inaction in the face of a crisis, when international assistance would be available upon request.386 The notion that states can only fulfil the obligations to the right to food (and ESCR in general) at vast public expense, while CPR impose no monetary obligation, is simply false. All human rights require, at the very least, the establishment and maintenance of institutional structures to secure an appropriate degree of compliance with these rights, and all such structures 383

384 385

386

See also the UN Declaration on the Right to Development emphasising a duty of states to solve international problems of an economic, social, cultural or humanitarian nature by means of international co-operation (UN Doc. A/RES/41/128, 4 December 1986, preamble and art. 4). The duty to request international support might, however, interfere with a country’s food sovereignty. For details about the concept of ‘food sovereignty’, see the Report submitted by the former Special Rapporteur on the Right to Food, Jean Ziegler, E/CN.4/2004/10, 9 February 2004, paras. 24-34. Committee on ESCR, General Comment No. 12, para. 17. Most states deny that a duty to provide assistance exists when affected states request aid (see the contribution of Special Rapporteur on the Protection of Persons in the Event of Disasters during the 25th meeting of the Sixth Committee of the GA, 31 October 2011, Report of the ILC on the work of its sixty-third session, A/C.6/66/SR.25, para. 56; see also, A/67/10, para. 57; A/CN.4/590, paras. 61-63 and para. 250). For further details, see Kaufmann, Hunger als Rechtsproblem, pp. 75-76; Tomuschat, Das Recht auf Entwicklung, p. 100; Cotula/Vidar, pp. 35ff. Compare this to the more permissive language of para. 16.6 of the FAO Voluntary Guidelines to Support the Progressive Realisation of the Right to Adequate Food in the Context of National Food Security (Rome, September 23, 2004, FAO Doc. No. CL 127/10Sup.1, Annex 2), which stipulates that states ‘should provide food assistance to those in need, may request international assistance if their own resources do not suffice, and should facilitate safe and unimpeded access for international assistance in accordance with international law and universally recognized humanitarian principles, bearing in mind local circumstances, dietary traditions and cultures’. See Fisher, p. 349.

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cost money.387 Sen argues that starvation is easy and relatively inexpensive to avoid: […] [S]tarvation can be prevented by systematically re-creating a minimum level of incomes and entitlements for those who are hit by economic changes. The numbers involved, while often absolutely large, are usually small fractions of the total population, and the minimum levels of purchasing power needed to ward off starvation can be quite small. Thus the costs of such public action for famine prevention are typically rather modest even for poor countries, provided they make systematic and efficient arrangements in good time.388 For an idea of the expense involved, Sen calculated the need for resources, and argued that many famines are caused by intentional neglect rather than inability, caused by cultural alienation, indifference and lack of political incentives.389 In Sen’s terms, as soon as a state perceives that the population (or part of it) is in urgent need of food assistance, and still does not take action, it violates its obligation to fulfil the right to food.390 Where a population does not have access to the minimum level of essential food to ensure its freedom from hunger, its government is in breach of its obligations to ensure the availability and accessibility of food, unless it has unsuccessfully sought to obtain international support.391 The core content of the right to food gives rise to minimum core obligations for states: States have a core obligation, regardless of their level of economic development, to at least ensure subsistence rights for all.392 This conclusion seems to be relatively straightforward, at least on a theoretical level. However, the establishment of positive duties is still controversial in practice and is poorly implemented. More than ten years after the Committee’s authoritative recognition of a positive obligation of states to provide food to their population,393 the active component of the right to food is still insufficiently honoured. 387 388 389 390 391 392 393

Sepulveda, p. 127. Sen, Development as Freedom, pp. 168-169. Ibid., pp. 169ff. Art. 2 (1), in conjunction with art. 11 ICESCR; and – following a broad interpretation of the right to life – art. 2 (2), in conjunction with art. 6 ICCPR. Barber, Facilitating Humanitarian Assistance, p. 395. Committee on ESCR, General Comment No. 3, para. 10; Coomans/Yakpo, particularly p. 23. Committee on ESCR, General Comment No. 12, para. 15.

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The Challenge of Assessing Compliance The concept of progressive realisation is inexact and renders ESCR difficult to monitor. In the present case of positive obligations, it is particularly challenging to assess compliance with the ICESCR.394 To enable the Committee on ESCR to monitor them, states are required to indicate in their reports both the measures they have taken and the foundation of their decisions about the most ‘appropriate’ actions under the circumstances.395 Different approaches to assessing compliance and identifying violations of the right to food have been proposed.396 Indicators and benchmarks have been elaborated to verify progress towards improving the living condition of the population.397 The OHCHR, for instance, suggests a time frame and coverage of national policy on agricultural production, food availability, drought, crop failure and disaster management, and also demands data on achieved outcomes (e.g., proportion of undernourished population or per capita availability of major food items of local consumption).398 The most demanding and, with regard to the present analysis, the most important assessment is if the state is unable or rather unwilling to realise its duties. It is only in the latter case that concomitant food insecurity is either caused or prolonged deliberately. Information about goods and services required to achieve key results must be efficiently monitored, and it must 394

395 396

397

398

Chapman, pp. 23-24. See, for example, Roth, who observes the confusion about how to monitor distributive justice (Roth, p. 69). The challenge of assessing compliance with the required positive steps has already been discussed in detail, in regard to the obligation to protect (pp. 106ff.). These deliberations are also valid for the obligation to fulfil the right to food. Committee on ESCR, General Comment No. 3, para. 4. See arts. 16-24 ICESCR. See the FAO ‘Methods to Monitor the Human Right to Adequate Food’, Vol. I-II, Rome: FAO 2008; or the seven-step approach by the GSF (for details see the FAO Factsheet, ‘The Human Right to Adequate Food in the Global Strategic Framework for Food Security and Nutrition – A Global Consensus’, Rome: FAO 2013, available at www.fao.org/ docrep/019/i3546e/i3546e.pdf). See, for instance, the 2013 Index compiled by the IFPRI, Concern Worldwide and Welt Hunger Hilfe (available at www.ifpri.org/publication/2013-global-hunger-index); or the improved data by the FAO: The State of Food Insecurity in the World 2013 (available at www.fao.org/publications/sofi/en); see also, IRIN Report from 14 October 2013, ‘FAO’s hunger data – getting better’ (available at www.irinnews.org/report/98936/fao-s-hunger-data-getting-better). OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008, Annex 1 (providing a list of illustrative indicators on the right to adequate food, art. 25 UDHR; see also, the relevant list on the right to life, art. 3 UDHR [ibid.]).

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be established that a government has the means to create and sustain these services. An acute analysis is required to spot malevolent states that mask deliberate starvation with claims of inability to realise the right to food. Anderson and Foresti recommend a three-part approach for all ESCR. In the case of the right to food, this requires first an econometric analysis that demonstrates the existing factors that limit people’s access to food, and an outline of the possible steps that a government could take to relieve starvation (i). Second, the cost of taking these steps must be determined (ii). Third, it must be determined if the government has the money and resources to take these steps (iii).399 Unintended trade-offs should also be taken into account. For example, the cost of realising the right to food might reduce the budget for promoting other rights. Economists and public finance specialists have demonstrated that the additional expenditure of food security is generally balanced as economic growth is stimulated by the realisation of ESCR.400 Barro and Sala-i-Martin show that life expectancy – which reflects nutrition, health care and literacy rates – is positively related to economic growth.401 But if a state is unable to muster the resources to address starvation, it has the duty to ask for foreign assistance, and must demonstrate that it has made all reasonable efforts to prevent starvation.402 The question of whether a state is obligated to provide social security and development in ordinary situations is a challenging one. While famine emergencies may be relatively simple to avert, general poverty and hunger are not so easily eradicated.403 Advocates for social protection disagree on efficient strategies.404 Persistent disagreement about the best way to provide social protection makes it difficult to effectively implement and monitor programs. In everyday situations, the practical implications, challenges and associated customs of the international community are also different than they are in the extraordinary circumstances of disasters. The following section (3.2) is divided into a discussion of food aid for populations that are unable to feed themselves in ordinary situations (a); and into a discussion of humanitarian

399 400 401 402 403 404

Anderson/Foresti, pp. 2-4. Ibid., p. 4. Barro/Sala-i-Martin, p. 554 (‘countries with high life expectancy in 1960 tended to grow faster over the following four decades’ [Ibid]). Cotula/Vidar, p. 35. Rubin, p. 1. An overview of the debates on social protection is provided by Devereux/SabatesWheeler, pp. 1-7. See also IDS Bulletin on Social Protection for Social Justice, Vol. 42, No. 6, edited by Devereux Stephen et al., Oxford: Blackwell Publishing 2011.

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assistance in emergencies (b). The gradient between the two is sometimes smooth, however, as poverty may swiftly morph into catastrophe.405 3.2 a) i)

Detailed Considerations Food Aid for the Poorest: Facilitating the Right to Food in Situations of Persistent Food Insecurity Necessary Measures against Poverty Does it help to think of poverty [...] as violations of basic rights?406

In an emergency, a local population might need urgent humanitarian assistance. But for some populations, poverty and hunger are part of everyday life.407 The issue of poverty has received increasing attention.408 The Committee on ESCR defines poverty as ‘a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights’.409 Even in a country with sufficient food supplies, those who do not produce food are limited in their ability to acquire food by their wages, prevailing food prices and nonfood expenditures. Food shortages are only one means of denying access to available food. It does not matter if there is enough food if some people do not have enough money to buy it.410 And even though a fisherman, for instance, produces food, the sale of his high-protein fish may not bring in enough money to allow him to purchase the staple foods – such as rice – that he needs 405 406 407

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Gathigah/Gao. For details, see Shepherd. The Politics of Human Rights, The Economist, 16 August 2001. The World Bank cut-off for poverty is an income of less than $1.25 a day. For exact figures about global poverty, see the World Bank’s database (available at http://povertydata.worldbank.org/poverty/home/ and http://data.worldbank.org/topic/poverty). In the year 2010, 20.6% of the world population were considered poor (for comparison: in the year 1990 it was still 43.1%). For details on measuring poverty, see Anand/Segal/ Stiglitz. See, inter alia, Chinkin, The United Nations Decade, pp. 553-589; Kaufmann/Grosz, Implementing Social Justice, pp. 237-254; Hinsch/Stepanians. E/C.12/2001/10, 10 May 2001, para. 8. See also para. 7, which describes poverty as the lack of basic capabilities to live in dignity. Cf. also Nelson Mandela’s view on poverty: He claimed that ‘overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of a fundamental human right, the right to dignity and a decent life. While poverty persists, there is no true freedom.’ (Ibid.). OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, p. 4; Sen, Development as Freedom, p. 164, pp. 170-171.

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to survive. Exchange conditions are important, and a sudden fall in relative price may have devastating consequences, rupturing fragile exchange equilibria.411 From Sen’s point of view, starvation is a function of entitlements and not of food availability as such.412 Hunger is a sign of social exclusion and inequality.413 From this perspective, poverty is a denial of fundamental human rights.414 When poverty is framed as a deprivation of human rights, then concrete entitlements can address the legal obligations and correlative legal duties of states.415 To efficiently tackle the problem of poverty, the abstract approach of many economists must be tangibly translated into human rights.416 Poverty and marginalisation are caused by political and economic forces and by the decisions of governments. They result in entitlement failures that undermine food security at the household level. The poorest sections of society cannot fully enjoy the right to food if they cannot afford to buy food or have the means to grow it themselves.417 Lack of adequate food is the ‘ultimate criterion of poverty’.418 Poverty also violates numerous other rights: Since food is a basic need for human survival, the daily struggle of the poor to ensure the minimum availability of food makes it impossible for them to devote time to other imminent problems, such as health care, housing and

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Sen, Development as Freedom, pp. 163-164. Sen, Poverty and Famines, p. 7. This ‘entitlement-approach’ has been criticised sharply. See, pars pro toto, Devereux, Sen’s Entitlement Approach; Nolan P., pp. 1–28. For Sen’s response, see Sen, The Causation and Prevention, pp. 29-40. Tauger criticises Sen’s analysis of the Bengal famine in id., Entitlement, pp. 45-72. See also Padmanabhan, pp. 1124; Goswami; Dipak. For details, see de Vita, pp. 103ff.; Jenkins/Micklewright, with a clear overview by Jenkins/Micklewright in their introduction on ‘New Directions in the Analysis of Inequality and Poverty’ (ibid., pp. 3-36). Kaufmann/Grosz, Poverty, Hunger and International Trade, p. 79. See also Special Rapporteur on the Right to Food, Olivier De Schutter, Large-Scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge, 28 December 2009, A/HRC/13/33/Add.2, paras. 28 (chapter IV), and 30 (chapter VI) (emphasising the importance of the right of every citizen to take part in the conduct of public affairs, and the rights of minorities). Kaufmann/Grosz, Poverty, Hunger and International Trade, p. 85. See also Chinkin, The United Nations Decade, p. 566. This was, for instance, undertaken by the OHCHR, Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies, 2006, HR/PUB/06/12. Whitaker, p. 1585; OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, p. 10. Deepa, p. 53.

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education.419 The FAO and OHCHR regard poverty as a ‘result of persistent patterns of discrimination in access to education and information, political and social participation and access to justice’.420 The entitlements of the poor are particularly fragile and highly vulnerable to any variation. Without safety nets, entitlement losses due to climatic fluctuations, shifts in consumer demand, market or price fluctuations can be fatal.421 It is thus important that the government assist the poorest to build sustainable livelihoods. Discrimination against Minorities

In practice, political and economic marginalisation often leave indigenous minorities in poverty, where they have considerably less access to adequate food than the general population.422 Canada, for example, is a state that has been neglecting the needs of its indigenous peoples.423 In May 2012, the current Special Rapporteur on the Right to Food said, after his visit to Canada, that he was ‘disconcerted by the deep and severe food insecurity faced by aboriginal peoples across Canada living both on- and off-reserve in remote and urban areas’.424 According to the Inuit Health Survey, 70% of adults living

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Skogly, pp. 66-67. For details, see Kaufmann/Grosz, Poverty, Hunger and International Trade, pp. 79-85; Hinsch/Stepanians; Pogge, Severe Poverty, pp. 11-54; Campbell, pp. 5574. OHCHR-FAO Fact Sheet No. 34, on the Right to Adequate Food, p. 10. Sen, Development as Freedom, p. 172. For details about the vulnerability of the rural and urban poor, see OHCHR-FAO Fact Sheet No. 34, on the Right to Adequate Food, pp.  10-12. See also FAO The Right to Food Guidelines, Information papers and Case Studies, 2006, p. 9. This curtailment not only undermines the right to food, but often also the right to health and to education (see FAO The Right to Food Guidelines, Information papers and Case Studies, 2006, pp. 9-10). Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc. A/ HRC/22/50/Add.1, 24 December 2012, para. 55. The term ‘indigenous peoples’ (in Canada, ‘aboriginal peoples’) comprises First Nations, Inuit and Métis (for details, see the Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc. A/HRC/22/50/Add.1, 24 December 2012, para. 53). Preliminary Reflections by Olivier De Schutter, Special Rapporteur on the Right to Food, on his visit to Canada from 6-16 May 2012, stated in a press conference in Ottawa on 16 May 2012, Chapter II (available online at www.srfood.org/images/stories/pdf/officialreports/201205_canadaprelim_en.pdf). He referred to the First Nations Regional Longitudinal Health Survey, which indicated that 17.8% of First Nations adults (age 25–39) and 16.1% of First Nations adults (age 40–54) reported being hungry but did not eat because they lacked money for food in 2007/2008 (Survey RHS 2008/10).

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in Nunavut425 were food insecure, a rate six times higher than the national average. This is the highest documented food insecurity rate of any aboriginal population in a developed country.426 The Roma also face discriminatory denial of access to social assistance in several countries.427 According to a 2006 survey by the UN Development Programme (UNDP), the majority of Roma in South East Europe (53%) went hungry in the previous month, compared to only 9% of the non-Roma population.428 The European Committee of Social Rights unanimously found in 2009 that Bulgaria is in violation of art. 13 (1) of the European Social Charter since it fails to ensure Roma adequate access to social assistance, and the Committee prompted the Bulgarian government to amend its law on social assistance.429 This kind of state behaviour infringes on the prohibition of discrimination. The principle of non-discrimination is not subject to the limits of progressive realisation, and imposes an immediate obligation to ensure rights, whatever

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Nunavut is the largest northernmost territory of Canada. The Inuit make up 83% of Nunavut’s residents (details provided in Hicks/White, pp. 30-34). Nunavut was the product of the largest aboriginal land claims agreement made between the Canadian government and the native Inuit people (see Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, assented to 10 June 1993). For details, see Loukacheva. Rosol, pp. 488-497; Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, UN Doc. A/HRC/22/50/Add.1, 24 December 2012, para. 55. The term ‘Roma’ is used to include Roma, Sinti, Kale and related groups in Europe (see for instance Scicluna). Details about the social exclusion of Roma children in Albania, Bosnia Herzegovina, Bulgaria, Kosovo, Macedonia, Montenegro, Romania and Serbia are provided by the UNICEF Report ‘Breaking the cycle of exclusion – Roma children in South East Europe’, Belgrade: UNICEF Serbia, February 2007. For details on the situation in specific countries, see individual World Bank Poverty Assessment Reports (available at http://web.worldbank.org). The situation in Bosnia and Herzegovina is e.g. analysed in the World Bank Bosnia-Herzegovina Poverty Assessment, Report No. 25343-BIH, Vol. I, 21 November 2003, Poverty Reduction and Economic Management Unit, p. 36. UNDP, At Risk: Roma and the Displaced in South-East Europe, Bratislava 2006, p. 57 (figure 1-41). The European Committee of Social Rights, Decision on the Merits, 18 February 2009, European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 48/2008, paras. 37-45. An overview of complaints under the European Social Charter concerning Roma and Travellers is provided at www.coe.int/t/dghl/monitoring/socialcharter/NewsCOEPortal/OverviewComplaintsRoma_en.pdf. Interesting is also the decision of the European Committee on Social Rights of 5 December 2007, European Federation of National Organisations Working with the Homeless (FEANTSA) v. France, Complaint No. 39/2006.

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the state’s level of resources.430 The prohibition of discrimination in the enjoyment of ESCR has reached the status of customary international law.431 Appropriate Measures to ensure Food Security

In comparison to the destitution caused by devastating catastrophes like tsunami or earthquake, prevailing poverty in ordinary situations does not attract a lot of attention. Poverty is a condition of the lower classes, a sector of the population that does not generally garner much public interest. This might lead to the hasty assumption that states are unlikely to use a deliberate failure to protect the poorest as a means of exerting political pressure. However, political objectives can be the goal of passively failing to protect the poor, as in Social Darwinist theories that presume that the ‘natural’ death of the burdensome political underclass is a desirable political end.432 Hitler regarded humanitarianism as a weakness433 and believed that ‘nature has to help again and to choose among those she has selected to live’.434 He admired the regime of the Spartans of old, for their exposure of sick, weak, or deformed children and considered this a necessary measure to preserve the lives of healthy children when Lebensraum was limited.435 Precisely because the poor often matter less to politicians, starvation policies often go undetected. But it is necessary to confront the basic problem of poverty and to adopt positive policies to alleviate destitution. Vulnerable groups (for example, the unemployed, people with disabilities, orphans, chil-

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Art. 2 (2) ICESCR; preamble, arts. 1 (3) and 55 of the UN Charter; and art. 2 (1) UDHR. See also Committee on ESCR, General Comment No. 20, para. 7; Sepulveda, pp. 395ff. See, inter alia, the judgment adopted by the UK House of Lords, R. v. Immigration Officer at Prague airport and (Respondents), ex parte European Roma Rights Centre and others (Appellants) [2004] UKHL55, paras. 98, and 102 (particularly on racial discrimination). Some go even further, and claim that the principle of non-discrimination has reached jus cogens status (see, inter alia, Inter-American Court of Human Rights, advisory Opinion OC-18/03 of 17 September 2003, requested by the United Mexican States on the Juridical Condition and Rights of the Undocumented Migrants, paras. 97-101). Social Darwinism is a misinterpretation of Darwin’s evolutionary argument that only the fittest members of a species survive. Social Darwinists generally support laissezfaire capitalism, and argue that aid to the poor disrupts the ‘natural order’, in which the strong survive and weak perish. For details, see Crook, pp. 29-44; Leonard, pp. 37-51. An exact English translation of Hitler’s words: ‘Here his [man’s] humanity is only the handmaiden of his weakness […]’. See Hitler, Hitler’s Secret Book, p. 17. The original (Das Geheime Zweite Buch) was written in 1928. Hitler, Mein Kampf. Hitler, Hitler’s Secret Book, pp. 17-18.

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dren under five or the elderly) need special protection.436 Their food security can be assured when entitlements protection is offered by political arrangement. Positive policies, like public employment and antipoverty programs, or unemployment insurance, regenerate the lost incomes of the destitute.437 Ramcharan stresses that – based on the positive dimensions of the right to life – states should at minimum take all possible measures to reduce infant mortality and increase life expectancy, and adopt measures to eliminate malnutrition and epidemics.438 Based on art. 3 UDHR, the OHCHR also demands a time frame and development of national policy to preserve health and meet nutritional minimums, and asks, inter alia, that the proportion of the population below the dietary minimum be gradually reduced.439 In practice, coping with general food insecurity is very complex. Social security nets are needed, as well as regulations against damaging private conduct.440 If the state fails to prevent private parties from negatively levering people’s access to food, it must provide social security. I return, again, to the decision of the Supreme Court of India in 2011, when the court stated that prevailing price levels made it impossible for either an urban or a rural individual to consume the necessary minimal amount of calories.441 In order to alleviate the problem, the court ordered various protective measures ‘to ensure that no starvation deaths may take place and people can be saved from malnutrition as far as possible’.442

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See, inter alia, 2011 ECOWAS Charter for Food Crisis Prevention and Management in the Sahel and West Africa, para. 6. The positive steps that state agencies must adopt to protect vulnerable and marginalised groups are interesting in the decision of the Constitutional Court of Colombia of 29 April 2009 (T-291/09). Sen, Development as Freedom, pp. 172-173. See Ramcharan, The Concept and Dimensions of the Right to Life, p. 17. See also Decaux, pp. 315-350. OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008, Annex 1. For details about the steps necessary to build long-term resilience and contribute to global food security, see ‘Food and Nutrition Security: Comprehensive Framework for Action – Summary of the Updated Comprehensive Framework for Action’, of the High Level Task Force on Global Food Security, August 2011, pp. 25ff. The obligations discussed here go hand in hand with the obligation to protect, which is reviewed in the second chapter (pp. 96ff.). For clarity, they are also addressed separately. Supreme Court of India, People’s Union for Civil Liberties v. Union of India and Others, Writ Petition Civil No. 196/2001, Order of 14 May 2011, pp. 6-7. Ibid., p. 11.

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People also need to be educated about the importance of micronutrients – as explicitly requested by art. 11 (2) (a) ICESCR. Even if people can buy nutritious food, they may still have vitamin and mineral deficiencies. The poor are sometimes badly educated about their own nutritional needs; such a lack is, in Sen’s and Webb and Thorne-Lyman’s terms, a form of ‘capability deprivation’.443 Eradicating hunger depends in large measure on the access of people and communities to land, fisheries and forests. Tenure and access rights to natural resources effect food production. Governments should promote secure tenure rights and equitable access to land, fisheries and forests if they are serious about eradicating hunger and poverty.444 The obligation to fulfil the right to food also includes measures to halt illicit capital flight. In countries with persistent food insecurity, limited financial resources do not excuse the government from its responsibility to address the unsatisfactory situation. The government must examine its national tax law, and ensure sufficiently progressive levels of taxation.445 For example, the African HR Commission recognised that if states fail to prevent illicit capital flight, their capacity to implement the Banjul Charter and to attain development goals will be undermined, and the Commission called upon state parties to rectify that defect.446 The obligation to take the appropriate measures to ensure food security is still not generally recognised as customary international law.447 Most developing countries have no general system of unemployment insurance, and if social insurance systems are in place, they only focus on natural or non-natural disasters.448 Ironically, the population has more than usual protection during emergencies. While people are more vulnerable during disasters, the deterioration of existing living standards might be tolerated in such exceptional circumstances,449 but is unacceptable in everyday life. States should 443 444

445 446 447 448 449

Webb/Thorne-Lyman, p. 17. See the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (endorsed by the CFS on 11 May 2012; available at www.fao.org/fileadmin/user_upload/newsroom/docs/VGsennglish. pdf). Report by the Special Rapporteur on the Right to Food to the GA, A/68/288, 7 August 2013, para. 17. African HR Commission, Res. 236, adopted at its fifty-third ordinary session, 23 April 2013. It is therefore redundant to analyse the relevant customary international law. Sen, Development as Freedom, pp. 169-170. A lower adequacy standard may be justified pursuant to art. 2 (1) ICESCR, considering the temporary lack of available resources and time constraints.

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establish universal social security to protect the population from starvation, no matter the source of the shortage. ii) Development Goals The importance of sustainable development is increasingly recognised and the relationship between development, peace and security has been identified.450 There is a growing debate about the existence of a right to development.451 According to the 1986 UN Declaration on the Right to Development,452 the right to development entitles people ‘to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.’453 Translated into state obligations this means: States have […] the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.454 Some scholars go even further and claim a ‘right not to be poor’.455 Despite the persistent weak implementation of ESCR and the usual primacy of CPR over ESCR, it is increasingly clear that human rights are dependent upon develop450

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See inter Res. GA/11425, 25 September 2013, Sixty-eighth Plenary Meeting of the GA, ‘World Leaders Highlight Link between Peace, Development as General Assembly’s Sixty-eighth Session Holds Second Day of Annual Debate’. See e.g. the High Level Task Force on the Implementation of the Right to Development established by the Commission on Human Rights (in its Res. 2004/7), and the ECOSOC (decision 2004/249). For the latest report, see Report of the high-level task force on the implementation of the right to development on its sixth session (Geneva, 14–22 January 2010), A/HRC/15/WG.2/TF/2, 24 February 2010. For further information about a right to development, see Orford, pp. 127-184. Hilary Charlesworth provides a feminist point of view on the right to development (Charlesworth, pp. 190-204). A lucid overview on the publications on the right to development provides the Working Group on the Right to Development of the HRC, in A/HRC/12/WG.2/TF/CRP.7/Add.1, 18 June 2009. UN Declaration on the Right to Development, GA Res 41/128 (UN Doc. A/RES/41/128), 4 December 1986. See also the Declaration on Social Progress and Development Proclaimed by GA Res. 2542 (XXIV), 11 December 1969. Art. 1 (1) UN Declaration on the Right to Development. See also Kinley, pp. 119-131 (on a human rights based approach to development). Art. 2 (3) UN Declaration on the Right to Development. For details, see Skogly; Pogge, Freedom from Poverty.

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ment projects, and that promoting economic and social development contributes, to a great extent, to the general implementation of human rights.456 All the world’s countries and the world’s leading development institutions committed in 2010 to achieve the eight Millennium Development Goals (MDGs) by the year 2015.457 MDG 1 is the eradication of ‘extreme poverty and hunger’, and ‘halving hunger by 2015’.458 But MDG 1 is weaker than the commitment made in para. 2 of the 1996 Rome Declaration on World Food Security459 (‘reducing the number of undernourished people to half their present level no later than 2015’).460 In addition to the MDGs, governments agreed at the 2009 World Summit on Food Security on Five Rome Principles for Sustainable Global Food Security.461 The UN Secretary-General commissioned an independent advisory body (‘UN Millennium Project’), which proposed the best strategies for meeting the MDGs.462 To advance the UN development agenda beyond 2015, the GA requested the Secretary-General to think about a post-2015 development agenda.463 The UN Conference on Sustainable Development (‘Rio+20’)464 resulted in a focused political outcome document that 456 457 458

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See, inter alia, Alston/Robinson, pp. 1-2; Kinley, pp. 93-104. UN Millennium Declaration adopted by the GA, 18 September 2000, UN Doc. A/ RES/55/2. ‘Target 1.C: Halve, between 1990 and 2015, the proportion of people who suffer from hunger’ (see, inter alia, Millennium Development Goals Report 2013, p. 10). See already in A/RES/55/2, para. 19. This declaration was adopted during the WFS 1996, together with the WFS Plan of Action. The WFS was called by the FAO in response to widespread undernutrition and was held on 13-17 November 1996 in Rome. The CFS monitors progress on the WFS targets (for the reformed mechanisms, see CFS:2009/2 Rev.2, Rome, 14, 15 and 17 October 2009). See also the ‘WFS: five years later’ which was held at FAO Headquarters in Rome from 10 to 13 June 2002. Further information is provided at www.fao.org/worldfoodsummit. Morten Haugen calculated that MDG 1 leaves approximately 200 million more people hungry than the WFS goal (Haugen, p. 1182). Declaration of the World Summit on Food Security (WSFS 2009/2), World Summit on Food Security, Rome, 16-18 November 2009 (see particularly Principle 3, para. 16, reaffirming the right to food). See the report by the UN Millennium Project: Investing in Development – A Practical Plan to Achieve the Millennium Development Goals, UNDP, 2005, available at www. unmillenniumproject.org. Res. of the GA, A/RES/65/1, 19 October 2010, (9th plenary meeting, 22 September 2010, on ‘Keeping the promise: united to achieve the Millennium Development Goals’), para. 81. The ‘Rio+20’ conference took place in Rio de Janeiro, Brazil on 20-22 June 2012.

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contains clear and practical measures for implementing sustainable development.465 These Sustainable Development Goals build on the MDGs and converge with the post-2015 development agenda.466 Difffijicult Supervision

Development goals point in the right direction. However, the use of the term ‘goals’ underlines that these are not legally binding obligations or human rights, but optional acts of benevolence.467 The vagueness of these positive obligations makes supervision difficult, while persistent disagreement on optimal strategies for eradicating poverty and hunger and providing social protection exacerbate the problem.468 Some scholars focus on underlying inequality469 and demand the redistribution of disposable income among the population.470 Others believe that a strong agricultural base is the best tool for fighting poverty.471 The concept of aid itself is controversial. Some economists believe in providing aid; others promote the free market, and believe that free trade and commerce are the only sustainable ways forward.472 I cannot detail these many different strategies here, but disagreement makes it harder to

465 466 467 468

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A/RES/66/288 – The Future We Want. For details, see the UN Sustainable Development Knowledge Platform on http://sustainabledevelopment.un.org. Kaufmann/Grosz, Poverty, Hunger and International Trade, p. 97. An overview of the debates on social protection is provided by Devereux/SabatesWheeler, pp. 1-7. See also IDS Bulletin on Social Protection for Social Justice, Vol. 42, No. 6, edited by Devereux Stephen et al., Oxford: Blackwell Publishing 2011. For details, see Jenkins/Micklewright, with an overview by Jenkins/Micklewright in their introduction on ‘New Directions in the Analysis of Inequality and Poverty’ (ibid., pp. 3-36). See for instance Sabates-Wheeler/Koehler, pp. 86-88; Ravallion, pp. 37-61; Carroll, pp. 89-95. But also there the approaches differ: Some focus on supporting agriculture to benefit the poorest (e.g. World Development Report 2008, Agriculture for Development, World Bank: Washington, DC 2007, p. 6), while others still plead in favour of industrial agriculture based on large holdings (see e.g. Collier). For a comparison, see Haugen, p. 1176. Kinley, pp. 109-111, analyses the approaches of different economists (including Jeffrey Sachs and Martin Wolf). See also Stiglitz/Charlton. Different poverty reduction strategies are also presented by Stewart F./Wand/Nankani/Page/Judge/Plant, pp. 447-506. For details on the conflict between the right to food security and liberalised trade in agriculture, see Kaufmann/Heri, particularly pp. 1057-1058.

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identify negligent states and address offences. The problem with these development goals is the difficulty we face in measuring such progress.473 The UN elaborated on using MDG Indicators to measure progress towards the MDGs.474 The FAO has introduced an improved method to assess hunger and food security, and has asked states to develop their own set of process, impact and outcome indicators.475 The FAO suggests that states rely on indicators and monitoring systems already in use to assess the progressive realisation of the right to adequate food. The FAO also requires appropriate benchmarks to be created to mark achievement in the short, medium and long term. These establish a minimum for poverty and hunger reduction targets, as well as other national and international goals, including those adopted at the World Food Summit (WFS) and the Millennium Summit.476 The MDGs Report 2013 reports the status of the project to cut the number of hungry people by half.477 Existing indicators and benchmarks show that states have reduced hunger and malnutrition, but the goals are still far from being achieved.478 473

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See, first, the Report by the Commission on the Measurement of Economic Performance and Social Progress, Joseph E. Stiglitz/Amartya Sen/Jean-Paul Fitoussi (on the initiative of the former French president, Nicholas Sarkozy), published 4 September 2009, available at www.stiglitz-sen-fitoussi.fr, which lists European sustainable development indicators (Appendix 1). See also HRC, Working Group on the Right to Development, A/HRC/12/WG.2/TF/2, 17 June 2009, Report of the high-level task force on the implementation of the right to development on its fifth session, (Geneva, 1-9 April 2009). An overview is also provided by the High-Level Expert Consultation on Elaboration of Criteria and Operational Sub-Criteria for the Implementation of the Right to Development, available at www.hks.harvard.edu. See the MDG Indicators website presenting the relevant official data, definitions, methodologies and sources: www.un.org/millenniumgoals/stats.shtml. FAO Report on the State of Food Insecurity in the World 2013 (available at www.fao. org/publications/sofi/en). See also IRIN Report from 14 October 2013: ‘FAO’s hunger data – getting better’ (available at www.irinnews.org/report/98936/fao-s-hunger-datagetting-better). FAO Voluntary Guideline, Guideline 17.3. Similarly, OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008, Annex 1 (regarding art. 25 UDHR). MDGs Report, UNO: New York 2013, pp. 10-13 (available at www.un.org/millenniumgoals/pdf/report-2013/mdg-report-2013-english.pdf). See, for instance, the 2013 World Hunger and Poverty Facts and Statistics (available at www.worldhunger.org), which assesses the different estimates, or the 2013 Index compiled by the IFPRI, Concern Worldwide and Welt Hunger Hilfe (available at www.ifpri. org). The World Bank showed that, in 2011, 54% of developing countries met or are on

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How can the Committee on ESCR monitor the effects of the measures taken by ICESCR state parties in concreto? The Committee asks states to report the efforts they have taken to continuously improve the living conditions of the local population.479 Specifically, the Committee demands that the state parties show that they have defined a national poverty line, and provide the basis for its calculation; or that they detail other mechanisms they use to measure and monitor the incidence and depth of poverty. As a benchmark for the implementation of the right to adequate food, the Committee applies the standard elaborated in the FAO Voluntary Guidelines and asks states to indicate if the state party has adopted or envisages the adoption of these guidelines; if not, they are asked to explain why.480 Relevant is in this context particularly Guideline 14.1, since it asks states ‘to consider, to the extent that resources permit, establishing and maintaining social safety and food safety nets to protect those who are unable to provide for themselves’.481 Limits to a Distributive Justice

The demand for the full realisation of the right to food should not be too extreme and should be realistic. The former UN Special Rapporteur on the Right to Food, Eide, emphasises that strict pursuit of distributive justice might not meet the intended objectives. This would imply […] that the state ensures an equitable redistribution of productive resources (land, capital, etc.) to every person under its jurisdiction; or that the state directs and controls the economic system and becomes the provider for every one of their material needs on a basis of equality.482 In practice, this ideal of justice requires a powerful state to control productive resources, and raises a sensitive issue. A powerful state might limit other human rights, like individual freedoms and political pluralism.483 The appli-

479 480 481 482 483

track to meet the goal of cutting extreme poverty in half (www.worldbank.org/mdgs/ poverty_hunger.html). An overview on the progress of implementation of the right to adequate food is provided by the Special Rapporteur on the Right to Food in its 2013 Report to the GA (A/68/288, 7 August 2013). The Committee on ESCR adopted detailed reporting guidelines on 24 March 2009 (E/C.12/2008/2, paras. 42-47). Ibid., paras. 42, 47. FAO Voluntary Guideline, Guideline 14.1. Eide, Strategies for the Realization of the Right to Food, p. 467. Ibid., pp. 466-467 (demonstrating that this is inefficient in creating a base for general welfare).

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cation of ideal principles of distributive justice creates disincentives to production and is counterproductive to the evolution of welfare.484 A centrally planned and directed economic system may decrease individual creativity and entrepreneurship, reduce innovation and clutter the processes of economic activity with needless bureaucracy. Economic expansion and growthgenerated resources should be directed to public support of health, nutrition, education and economic security for the more deprived and vulnerable.485 Development goals might have a positive impact on international law, but they cannot grant people concrete entitlements to legal obligations or substitute for the correlative legal duties of states. A rights-based approach is required to effectively tackle poverty, and is a more powerful tool than instituting social policies or applying a ‘needs-based approach’.486 Abstract ideas about development must be translated into human rights and formulated in concrete detail.487 The existing insurmountable problems that obstruct the search for ideal distributive justice must not lead us to neglect ESCR. Even poor countries can take immediate steps. There are enough resources and tools to guide and technically assist the effort to overcome any excuses about holes in our knowledge. We can identify negligent states by using the existing instructions to detect deliberate starvation and lack of political will to respect the right to food.

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487

The ideologically nurtured conception that a command economy is a prerequisite for implementing ESCR is fallacious. See Eide, Strategies for the Realization of the Right to Food, p. 461; see also, more detailed explanations on p. 467. Whitaker, p. 1588; Eide, Strategies for the Realization of the Right to Food, pp. 467-468. The deliberations about the positive impact of free trade on international stability and peace, and thus on the protection of human rights, are of interest here. See Diggelmann, Wirtschaftsvölkerrecht und Menschenrechte, pp. 84-85. Kaufmann/Grosz, Poverty, Hunger and International Trade, pp. 85-86. See also Chinkin, The United Nations Decade, p. 566. For details, see the OHCHR, Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies, 2006, HR/PUB/06/12. See the former UN High Commissioner for Human Rights, Mary Robinson, in the preface to the Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, OHCHR, 10 September 2002.

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b)

Humanitarian Assistance in Emergencies: Fulfijilling as Providing the Right to Food Humanitarian assistance is distinguished from general food aid (a) by its emergency character and the fact that it is used to relieve disaster victims.488 The subject of humanitarian assistance was raised in chapter 1.2, as regards active hindering, and the term was defined there.489 The failure to provide humanitarian aid must be distinguished from the act of hindering humanitarian aid. Here, the definitive criterion is that the government remains passive despite its obligations. However, a precise distinction is difficult to apply in practice, since governments often do both at the same time. In this chapter, I demonstrate, first, the practical significance of delivering humanitarian assistance during emergencies (i). Second, I provide legal background on the right of disaster victims to request and receive humanitarian assistance, expanding on the explanation in chapter 1.2 (ii). Third, I specify the conditions and modalities under which the humanitarian assistance shall be delivered (iii), and fourth, I tackle the particular effect of disasters on the poor (iv). Fifth, and finally, I discuss the customary status of these provisions (v). i)

Particular Importance in Practice: Inconspicuous Annihilation during Emergencies The devastating circumstances of emergencies and catastrophes spring first to mind when we think of food aid. These are accompanied by the awful mental pictures of people suffering from famine after a natural disaster like the cyclone in Myanmar or the drought in Somalia. Drought and flooding are not usually seen as under human control, and often seem a sufficient explanation for the resulting starvation. Under the guise of disaster, deliberate starvation can often pass unnoticed because in these extreme situations the population is easily manipulated by state policy.490 A vast range of death from hunger is tolerated by the world public when it takes place in the context of natural

488

489 490

In comparison to the term ‘humanitarian assistance’, the term ‘food aid’ has been used in a broader sense including all types of food-related support to respond to emergency food situations and other food needs of developing countries (see in art. 1 of the former 1999 Food Aid Convention and implicitly in preamble of the current 2012 Food Assistance Convention). See above on pp. 78ff. On the possible inducement for such inactivity, see Plümper/Neumayer, pp. 12ff.

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catastrophes.491 But even when such emergencies are beyond human control, their impact can be mitigated. Sen and Drèze persuasively argue that even when natural occurrences are the initial cause of famine, the effect of these disasters on the population depends on the social and political organisation of the society in which they take place.492 Mass death may not only be a result of altered natural conditions, but also of ‘negligence or smugness or callousness on the part of the non-responding authorities’.493 This is particularly evident in case studies. For example, Marcus demonstrates that even though the DRK and South Korea suffered similar floods in 1995, famine only struck the former.494 The North Korean regime blamed the famine on the floods, but the floods were only the proximate cause. The famine had been preceded by several years of food shortages, and even before the floods, death rates had begun to climb.495 The authoritarian regime made little effort to offset declining harvests by either purchasing grain on the world market, or appealing for humanitarian assistance. According to Haggard and Noland, the famine was largely the result of the Communist regime’s indifference to human suffering, its economic collapse, its insular nature and its self-imposed isolation.496 In revolutionary Cuba, Fidel Castro had used extreme climatic conditions to justify food scar491

492 493 494 495

496

See also Stark about the myth ‘Africa has drought, drought causes failed harvest, failed harvest equals famine’ which is still deeply engrained in the popular perception of today in relation to the development of famines (ibid., pp. 20-21). Drèze/Sen, p. 46. See also A/64/224, para. 66. On minimising the loss of life by improving the quality of risk governance, see Shepherd, pp. 57-58. Drèze/Sen, p. 263. Marcus, p. 250. Food Crises in North Korea, Gary Feuerberg, Epoch Times Washington, D.C., 9 April 2007. Haggard and Noland point out the important role of the politics of the crisis, since the floods ‘provided the opening for the government to portray the problem as a natural disaster’ (Haggard/Noland, p. 34). Haggard/Noland, pp. 37ff.; Food Crises in North Korea, Gary Feuerberg, Epoch Times Washington, D.C., 9 April 2007, on the information event by Stephan Haggard and Marcus Noland. For details, see UN Doc. A/64/224; UN Doc. A/HRC/22/57; Haggard/ Noland/Weeks; Marcus, pp. 259-260; Nelan, p. 51; Foster-Carter; Kirk, para. A5; Report des U.S. Committee for Human Rights in North Korea of 30 October 2006, ‘Failure to Protect: A Call for the UN Security Council to Act in North Korea’; Amnesty International Report, Starved of Rights: Human Rights and the Food Crisis in the Democratic People’s Republic of Korea, January 2004, pp. 16ff., available at www.seoultrain.com/ content/resources/asa2400304.pdf. For an overview of different human rights publications about the DRK, see the database by U.S. Committee for Human Rights in North Korea (available at http://hrnk.org).

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city, almost since the revolution began in 1959. Cuban leadership blamed nature for many of the failings of Cuba’s agricultural sector and its prevailing food insecurity. Yet Alvarez demonstrates that the Cuban regime has not especially suffered from natural disasters.497 Similarly, prevailing weather and growing conditions are more beneficial in Sudan than in Botswana, but political conditions are very different. Thus, Botswana managed to elude famine in spite of chronic drought, while Sudan is very vulnerable to famines.498 These observations are supported by Sen, who determined that a famine has never occurred in a functioning multiparty democracy.499 ii) The Right to Receive Humanitarian Assistance It is worth repeating that the right of disaster victims to humanitarian assistance is still controversial in international law.500 There is no coherent international legislation equivalent to the conventions in IHL that regulates humanitarian aid in peacetime, though HRL implicitly requires states not to hinder humanitarian assistance in times of disaster. In this section, I specifically consider the relevant positive obligations of states. The right to life and the right to food apply equally in the event of either natural or human-made disasters. The Committee on ESCR explicitly stresses the obligation of states to provide food directly whenever the population is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at its disposal, and that this right also applies to victims of natural or other disasters.501 Nevertheless, the adequacy standard may temporarily be lower, given the lack of resources and time constraints that disaster imposes (art. 2 [1] ICESCR). The right to be free from hunger shall in no case be suspended.502 There is a direct link to the non-derogable right to life enunciated in art. 6 (1) ICCPR and hence to art. 4 (2) ICCPR. A state’s obligation to provide humanitarian assistance may therefore be deduced primarily from the obligation to fulfil the right to food and the right to life. 497 498 499 500 501

502

Alvarez, Natural Disasters; Alvarez, The Potential Correlation. Marcus, p. 250. Sen, Famines and other Crises, p. 178. For a short overview, see the study of the ILC, A/CN.4/590, para. 257, 11 December 2007. See the details above, on pp. 81ff. Committee on ESCR, General Comment No. 12, para. 15. Some non-binding documents contain similar language (see, for example, art. II of the Bruges Resolution; General Principles, Principle I of the IASC Guidelines). The Committee on ESCR points out in its General Comment No.12, para. 6, that states still have a ‘core obligation to take the necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of art. 11, even in times of natural or other disasters’.

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In the extraordinary circumstances of natural or man-made disasters, the population often depends mainly on support. Under a state of emergency, access to food is, in most cases, interrupted. Infrastructure and food stocks may be destroyed, and the affected population is frequently in urgent need of food assistance. To prevent starvation, the government is obligated to instantly provide the at-risk population with food.503 The GA explicitly stressed ‘the cardinal importance of humanitarian assistance for the victims of natural disasters and other emergencies’.504 It further emphasised, repeatedly, the responsibility of each state to, first and foremost, take care of the victims of such emergencies when they occur on its territory, and also emphasised the primary role of the affected states in the initiation, organisation and coordination of humanitarian assistance within their own borders.505 The fact that famine prevention does not only depend on the technical capacity of a country (i.e. food production and distribution) is still not sufficiently taken into account.506 Famines depend more on the political will to predict and respond in a timely fashion to humanitarian emergencies. In many 20th century famines, political will to alleviate the problem was lacking at the national or transnational levels, and sometimes negligence was exercised malevolently to injure famine-afflicted people.507 iii) Modalities of the Delivery of Humanitarian Assistance An implicit right to assistance may well be deduced from the existing binding human rights instruments, but they provide no specific means to request and facilitate international relief.508 To counter this lack, guidelines and resolutions specifically address delivery of humanitarian assistance (e.g., the Draft Articles on the Protection of Persons in the Event of Disasters provisionally

503

504 505 506

507 508

Principles 1 and 2 of the IIHL-Principles and art. II (2) of the Bruges Resolution refer to this as an explicit right of the victims of disaster to request and receive humanitarian assistance. GA Res. of 19 December 1991, UN Doc. A/RES/46/182, Annex, para. 1. Ibid., Annex, para. 4; GA Res. of 5 February 2004, UN Doc. A/RES/58/114, preambular para. 8. See, for instance, the debate of the ILC in which it was observed that most cases did not involve any mala fides on the part of the affected state, and that, in the few extreme cases in which states did withhold consent arbitrarily, it was unlikely that a right-duty approach would have assisted persons affected by disasters (UN Doc. A/67/10, Chapter V, para. 62). Devereux, Famine in the Twentieth Century, pp. 1, 29. Fisher, p. 348. A detailed analysis is provided in Cotula/Vidar.

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adopted by the ILC509). Specific international law, applicable to disasters in peacetime, is still a scattered and heterogeneous collection of instruments.510 In the context of ‘passive starvation’ a state has the duty to provide food. When the magnitude and duration of disasters are beyond the response capacity of the affected states to address, governments are urged to actively facilitate the work of humanitarian organisations and, to the extent possible, the transit of humanitarian assistance.511 The Committee on ESCR determined, in General Comment No. 12, that the right to be free from hunger is violated if hunger exists on a state’s territory and the state cannot show that it has made every effort to address it immediately, including by seeking international assistance if its own means are insufficient to address humanitarian needs.512 If a disaster exceeds its national response capacity, the affected state has the positive duty to seek assistance from among other states, the UN, other competent intergovernmental organisations and relevant NGOs (art. 10 of the ILC Draft Articles on the Protection of Persons in the Event of Disasters).513 In its draft articles, the ILC also makes it clear that even though the provision of external assistance requires the consent of the affected state, this consent shall not be arbitrarily withheld (art. 11). According to the principle of sovereignty and non-intervention, the state’s consent to offers of humanitarian assistance from a third state is generally discretionary.514 However, the trend in favour of an obligation on the affected state to request international assistance where

509

510

511 512 513 514

The newest version of the Draft Articles on the Protection of Persons in the Event of Disasters by the ILC is printed in the Report of the ILC, UN Doc. A/68/10 (Sixty-fifth session, 6 May-7 June and 8 July-9 August 2013, pp. 73ff.). Fisher, p. 353. For a comprehensive study of the multiple aspects of humanitarian relief see A/CN.4/590, particularly paras. 157ff. and the selected bibliography in Add. 3. See also the deliberations about the soft law, as applied for humanitarian assistance, pp. 65ff. For a complete list of the relevant treaties, see A/CN.4/590/Add.2, Annex II. GA Res. of 25 February 2005, UN Doc. A/RES/59/141, preambular para. 8; see also GA Res. of 10 February 1997, UN Doc. A/RES/51/194, preambular para. 12. Committee on ESCR, General Comment No. 12, paras. 6 and 17. Details about the request for assistance are provided at UN Doc. A/CN.4/590, paras. 5159, in particular para. 57 on the duty to request. See also Fisher, pp. 355-356. Cf. on the principle of sovereignty and non-intervention the Corfu Channel Judgment (9 April 1949), ICJ Reports 1949, p. 4, p. 35; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits Judgment, ICJ Reports 1986, p. 14, pp. 106-108, paras. 202-205. See also the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (GA Res. 2625 [XXV] of 24 October 1970, Annex). For details, see Costas Trascasas, pp. 221-249.

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its domestic capacity is overwhelmed likewise constrains its ability to decline such offers.515 In addition, more than mere permission is required to deliver international food aid. States have the positive obligation to actively facilitate relief operations and to provide security for them.516 This means that the affected state has to take positive steps to facilitate transit and freedom of movement and ensure access by operational organisations to emergency areas.517 The state also has the duty to ensure the protection of persons and provision of disaster relief on its territory.518 Some provisions solely focus on protecting UN officials and associated personnel, and require the affected states to actively ensure their safety and security.519 Foreign food aid is frequently diverted in autocratic states, since autocratic governments lack incentives to ensure that food aid will be efficiently allocated to all affected people.520 The provision of humanitarian assistance shall be carried out according to the principles of humanity, neutrality and impartiality.521 Certain population groups (such as pregnant and lactating women, very young children, persons affected by chronic diseases like HIV/AIDS, people with disabilities or the

515 516 517

518

519

520

521

A/CN.4/590, para. 65. Fisher, pp. 359ff. See GA Res. 46/182, Annex, para. 35 (d). European Council Decision (2001/792/EC) of 23 October 2001, Official Journal of the European Communities, Vol. 44, No. L 297), art. 4 (h); FAO Voluntary Guidelines, Guideline 15.3. Further instruments are listed in A/CN.4/590, para. 116f. Access can, for instance, be insured by the establishment of safety zones (concept of humanitarian space) or relief corridors (see A/CN.4/590, paras. 262-267). Art. 9 of the Draft Articles on the Protection of Persons in the Event of Disasters by the ILC (printed in the Report of the ILC, UN Doc. A/68/10, Sixty-fifth session, 6 May-7 June and 8 July-9 August 2013, pp. 73ff.). For details, see A/CN.4/590, paras. 203ff. Art. 7 of the Convention on the Safety of UN and Associated Personnel, adopted on 9 December 1994, entered into force on 15 January 1999, UN Treaty Series, Vol. 2051, No. 35457. See also its Optional Protocol, annexed to GA Res. 60/42 of 8 December 2005. For details, see A/CN.4/590, paras. 204-209. Plümper and Neumayer explain that foreign food aid is generally welcomed in democratic countries as it allows the domestic government without immediate economic costs to win political support from the affected parts of the population without the need to fear a decline in support from unaffected parts (Plümper/Neumayer, pp. 19-20). GA Res. 46/182 of 19 December 1991, Annex, para. 2; GA Res. 43/131 of 8 December 1988, preamble; GA Res. 45/100 of 14 December 1990, preamble. For details, see A/CN.4/590, paras. 10-15.

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elderly) are especially vulnerable when nutritious food is less accessible.522 Therefore, the principle of humanity implies that particular attention must be paid to supporting the most susceptible members of the population.523 Following the principle of neutrality, provision of humanitarian assistance must be removed from the political, religious, ethnic or ideological context.524 The FAO emphasises in its Voluntary Guidelines that ‘food should never be used as a means of political and economic pressure’.525 Under the principle of impartiality, humanitarian assistance to individuals should be guided only by their needs – giving priority to the most urgent cases of distress.526 Provision of relief should further be undertaken without discrimination of any kind as to nationality, race, religious beliefs, class or political opinions.527 In the example of the DRK, discrimination in food aid provision was particu522

523

524

525

526

527

‘Food and Nutrition Security: Comprehensive Framework for Action – Summary of the Updated Comprehensive Framework for Action’, of the High Level Task Force on Global Food Security, August 2011, p. 9. See also pp. 20ff. for details about the actions necessary to meet these immediate needs. See, for example, the Guidelines on the Use of Military and Civil Defence Assets in Disaster Relief (‘Oslo Guidelines’), Rev. 1, 27 November 2006, para. 20; art. 2 (c) (i) of Food Assistance Convention 2012; Ebersole, p.  196. For details about further instruments providing special protection for vulnerable groups, see Cotula/Vidar, pp. 58ff.; Bizzarri, pp. 381-414. Consolidated Framework of World Food Programme Policies, document WFP/ EB.2/2005/4-D/Rev.1 (14 November 2005), para. 42; Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva 1986 (amended in 1995 and 2006), preamble; Oslo Guidelines para. 20; Ebersole, p. 196. Guideline 16.1. See also the IASC Guidelines on the Protection of Persons in Situations of Natural Disasters, General Principles II.4; The Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, (adopted at the 30th International Conference of the Red Cross and Red Crescent, held in Geneva from 26 to 30 November 2007), art. 4 (2) (a); GA Res. 46/182 of 19 December 1991, Annex, para. 5; Principle 24 (2) of the Guiding Principles on Internal Displacement. A/CN.4/590, para. 14, clarifies the distinction to the principle of non-discrimination. See also Macalister-Smith, Draft International Guidelines, para. 6a; Cotula/Vidar, pp. 55ff. Art. II (3) of the Bruges Resolution, for instance, stresses that humanitarian assistance shall be offered and, if accepted, distributed without any discrimination on prohibited grounds, while taking into account the needs of the most vulnerable groups. See also the 1984 Draft Convention on Expediting the Delivery of Emergency Assistance, A/39/267/Add.2-E/1984/96/Add.2, Annex, art. 5 (1) (c). For further details, see A/ CN.4/590, para. 16.

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larly apparent: The DRK’s inequitable food distribution system favoured highranking Workers Party officials, military, intelligence and police officers and discriminated against the ‘hostile’ class it deemed politically disloyal to the government and Party.528 Special attention should moreover be paid to the gender-specific discrimination.529 The IASC Guidelines, for instance, require that specific programs for humanitarian action should take into account and address gender-specific roles in the society concerned, and that sexual violence in food and nutrition programmes must be prevented.530 As regards the standard of food, reference is made of the adequacy standard of the right to adequate food as enshrined in art. 11 (1) ICESCR. However, temporary scarcity of food resources during emergencies may justify a lower adequacy standard than do normal circumstances (art. 2 [1] ICESCR). Time constraints may further impede the provision of adequate food. In view of the extraordinary character and circumstances of such catastrophes, inadequate humanitarian assistance (of insufficient quality or quantity) may be justified, pursuant to art. 4 ICESCR, as long as these limitations are ‘solely for the purpose of promoting the general welfare in a democratic society’ and the core content is still ensured.531 Cotula and Vidar point out that ‘food aid of low quality may be [...] better than none, provided of course that the food is safe for human consumption’.532 Some emergency situations, however, last a long time533 and the long-term reduction of the quality of food seriously harms a population. Generally, people do not die of the famine, per se, but of diseases 528

529 530 531 532

533

‘A matter of survival: the North Korean Government’s control of food and the risk of hunger’, Human Rights Watch, Vol. 18, No. 3, New York, 2006, pp. 8ff. For further details on the human rights violations in the DRK see the references above on pp. 79f. Cotula/Vidar, pp. 61ff. See also CEDAW, preambular para. 8. IASC Guidelines, paras. B.1.4, B.2.1. The right to be free from hunger shall, however, in no case be suspended (Committee on ESCR, General Comment No.12, para. 6). Cotula/Vidar, p. 73. Ertharin Cousin (WFP) explained in her LSE lecture from 17 September 2013 that it is a constant challenge to determine how much a person needs when there are not enough means to feed everybody adequately. She pointed out that it is the difficult work of experts to decide on exact food rations in cases when the adequate rations have to be cut down in order to feed everybody in the affected area. In the case of the devastating earthquake in Haiti 2010, for instance, the shift from emergency aid to more sustainable project took place two years after the earthquake (‘Haiti, 3 years on’, Report by the Disasters Emergency Committee [DEC], 11 January 2013, available at www.dec.org.uk/appeals/haiti-earthquake-appeal/haiti-3-years; DEC is an association of the leading UK aid charities for times of crisis). See also the long term effect of the Fukushima nuclear catastrophe on the food security of the inhabitants (see, e.g., the WHO Report on ‘Health risk assessment from the nuclear ac-

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(such as cholera, typhus or diarrhoea) triggered or aggravated by food, water or micronutrient deficiencies.534 Some conventions regulate the quality of food assistance to ensure that international disaster relief is of a sufficiently high standard to benefit victims.535 The IASC Guidelines, for instance, determine the adequacy of disaster relief goods, and, inter alia, require that they be culturally appropriate and acceptable, particularly if the affected persons are indigenous peoples or belong to particular ethnic or religious communities.536 Note that such regulatory regimes can act as a barrier to efficiency in the course of a rapid response relief operation.537 Victims who live in areas affected by earthquakes or floods are often forced to leave their homes. In these cases, the specific rules on IDPs should be considered.538 According to principle 3 of the Guiding Principles on Internal Displacement, national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to IDPs within their jurisdiction (para. 1) and IDPs have the explicit right to request and to receive protection and humanitarian assistance from authorities (para. 2).539 The crucial importance of humanitarian assistance to IDPs is further acknowl-

534

535

536

537

538 539

cident after the 2011 Great East Japan Earthquake and Tsunami based on a preliminary dose estimation’, Geneva: WHO 2013, pp. 87-90). Webb and Thorne-Lyman demonstrate in detail the dynamics by which micronutrient deficiencies interact with disease (Webb/Thorne-Lyman, pp. 9-14). It is not clear whether people die of diseases because of increased susceptibility, or because of increased exposure (for an overview, see Devereux, Famine in the Twentieth Century, p. 12). A/CN.4/590, para. 76, paras. 194-202. Reference can be made to the WHO report about ‘Management of Nutrition in Major Emergencies’ for nutritional requirements during emergencies (Management of Nutrition in Major Emergencies, Geneva: WHO 2000, with exact detailed figures of nutritional requirements in Annex 1). See also Prinzo/de Benoist, pp. 251-257. IASC Guidelines, para. B.1.2 (iii). Similarly, the Sphere Humanitarian Charter provides detailed minimum standards for food aid (the Sphere Project: Humanitarian Charter and Minimum Standards in Disaster Response, Geneva, 2000, revised in 2004, Chapter 3, para. 4). Further instruments are listed at Cotula/Vidar, pp. 73ff. A/CN.4/590, para. 76, paras. 201-202. The IASC Guidelines, for instance, take this into consideration and stipulate that during the immediate emergency phase, relief services are considered adequate if they ensure that everyone who needs these services survives (para. B.1.2). For a detailed analysis, see Kälin/Williams/Koser/Solomon, pp. 47ff. See also Principle 18 (2) ensuring safe access to essential food for IDPs. Other provisions take into account their special need for protection, as for instance the IASC Guidelines (paras. B.1.3, B.2.4).

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edged in many resolutions of UN bodies, including the GA, the ECOSOC and the SC.540 Arts. 20 and 23 of both the Convention Relating to the Status of Refugees541 and the Convention Relating to the Status of Stateless Persons542 guarantee non-discriminatory access of the peoples concerned to products in short supply and to public relief and assistance.543 iv) Special Attention to the Needs of the Poor Disasters have a devastating effect on the environment and on human populations. Despite the indiscriminate harm they cause, not all classes of society are equally affected.544 ‘Nature may be blind to social class and economic status, but the reality is that the poor die in greater numbers and endure higher economic losses during disasters.’545 Disasters often exacerbate existing inequalities and increase the vulnerability of at-risk populations.546 Therefore, special attention must be paid to the poorest segment of the population, particularly in the long run. During the debate of the ILC over the Draft Articles on the Protection of Persons in the Event of Disasters, it was emphasised that 540

541

542

543 544

545 546

An overview of the relevant Resolutions and their content is provided in ‘Compilation of UN Resolutions on Humanitarian Assistance’, OCHA, Policy and Studies Series 2009, pp. 31-47. Adopted on 28 July 1951, by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under GA Res. 429 (V) of 14 December 1950, entered into force on 22 April 1954, in accordance with art. 43. For further details, particularly concerning the application of the Convention, the definition of the term ‘refugee’ and the protection of IDPs, see Cotula/Vidar, pp. 12-14. Adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by ECOSOC Res. 526 A (XVII) of 26 April 1954, entered into force on 6 June 1960, in accordance with art. 39. Golay/Özden, p. 11. ODI shows that the poor are particularly disadvantaged and often disproportionately exposed to climate shocks in the era of climate change (Kuriakose/Heltberg/Wiseman/Costella/Cipryk/Cornelius, p. 20). See also IRIN Report from 17 October 2013: ‘Climate shocks will hurt poverty targets’ (available at www.irinnews.org/report/98954/ climate-shocks-will-hurt-poverty-targets). See Mutter’s Talk at the Earth Institute Columbia University. Devereux demonstrates that even when famine mortality is high in absolute numbers, the percentage of deaths in the national population rarely exceeds 2-3%. Mortality rates among vulnerable socioeconomic groups can be considerably higher than the average (Devereux, Famine in the Twentieth Century, pp. 9-10). See also the paper on Poverty and Climate Change – Reducing the Vulnerability of the Poor through Adaptation, prepared inter alia by OECD, UNEP and UNDP, 2003, pp. 5-8 (available at www. oecd.org); Gathigah/Gao.

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the extent of personal damage inflicted by a disaster was in proportion to the level of poverty.547 First aid facilities are important, but the protections of the entitlement to food is vital. Providing commodities and materials during a natural disaster relief operation is only the beginning. Some severe famines have not reduced the amount of food availability per person.548 Sen explains that starvation can occur even in prosperous nations, and illustrates this with the example of the Irish famine of the 1840s, during which food was exported from famished Ireland to prosperous England.549 Market forces encourage movement of food to places where people can pay higher prices for it.550 Noland, Robinson and Wang confirm this, and demonstrate it in the famine in the DRK, which has lasted since 1995. Even though food production declined, the famine primarily resulted from systemic crisis and a decline in income. In the DRK, famine reflects an ‘entitlement failure’ (a decline in incomes or entitlements of vulnerable groups), rather than a failure to produce or supply enough food.551 Contemplating the complex economic relations underlying famine can bring a deeper understanding of the support measures required to relieve it, and their impact on populations. The world’s poor are mostly rural and depend on agriculture for their employment and income.552 Because agricultural production fluctuates, they are particularly vulnerable to natural disasters. Even when food is not scarce in the country, peasants may suffer entitlement losses when their harvest is destroyed (or, in Sen’s terms, ‘food output in their territory declines’553). When they do not have food to sell, victims cannot afford to buy food from elsewhere since they rely on sales for their income. Those in other locations and occupations and those with more secure earnings may be able to pur-

547 548

549

550 551 552

553

UN Doc. A/67/10, para. 69. Sen, Poverty and Famines, p. 7. Sen defines starvation as some people not having enough food to eat, rather as there being not enough food to eat (ibid., p. 1). See also to that effect, OHCHR-FAO Fact Sheet No. 34 on the Right to Adequate Food, p. 4. Sen, Development as Freedom, pp. 171-172. For details on the Irish famine, see for instance Dando, Great Irish Famine, pp. 97-123; Crowley et al.; Delaney; Kinealy; Woodham-Smith. Sen, Development as Freedom, p. 172. Noland/Robinson/Wang, pp. 746-747. The World Bank notes that 75% of poor people in developing countries live in rural areas, and most depend on agriculture for their livelihoods (World Development Report, Agriculture for Development 2008, World Bank: Washington, DC 2007, p. 1). Sen, Development as Freedom, p. 167.

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chase food,554 but those hardest hit may be forced to sell their assets in order to cover their bare necessities. These sales can spiral into disaster. When many people simultaneously try to sell their assets, the free market economy can trigger a crash of market prices. In times of emergency, a ‘food countermovement’ can frequently be observed.555 As the purchasing ability of consumers drops sharply, and the available food supply (reduced as it is) fetches a better price elsewhere, food may even be exported to other regions or countries. This kind of food countermovement took place during the Wollo famine in Ethiopia, in 1973. Sen notes sarcastically that this kind of movement of food is no great economic mystery, since the market always encourages the movement of goods to the place people will pay the highest price for it.556 The conclusion that halting market transactions would be the right way to halt a famine is premature. It is more important to recreate the lost entitlements for those who are hit the hardest by the emergency. Positive policies that regenerate the lost incomes of the destitute (for instance, through public employment programs or insurances557) can slow or halt the food countermovement after a disaster, since the domestic purchasers could pay market prices for food.558 Food aid measures should expand their focus beyond the delivery of goods to meet the urgent and immediate needs.559 In addition, states should take account the effect that food aid deliveries have on marketing local harvests in the affected area and provide for longer-term rehabilitation and development.560 They should meet emergency food requirements in 554

555 556 557

558 559

560

Sen emphasises that this can lead to another dangerous phenomenon: food prices may shoot up because some occupational groups find their purchasing power is suddenly increased; as a result, others may be ruined because the real purchasing power of their incomes has sharply diminished (Sen, Development as Freedom, p. 167). Sen, Development as Freedom, pp. 172-173. Ibid., p. 172. Sen refers to this class of famines as so-called ‘slump famines’ (ibid.). The importance of micro-insurance for natural disasters (e.g. flooding and climate change) was emphasised in the debate in the seminar on ‘What Role Do Property Rights Play in Climate Change?’, held at the BIICL, London, 6 June 2013 (particularly the deliberations by Professor Philippe Cullet). Sen, Development as Freedom, pp. 172-173. The ECOWAS member states, for instance, undertake to ‘choose alternatives to food aid wherever possible and use it [food aid] only when it is the most effective and appropriate means of assistance for the crisis in question’ (see the 2011 ECOWAS Charter for Food Crisis Prevention and Management in the Sahel and West Africa, para. 6). See also art. 2 (a) (i) of Food Assistance Convention 2012. See art. 2 (a) (ii) and (v) of Food Assistance Convention 2012. See also the 2011 ECOWAS Charter for Food Crisis Prevention and Management in the Sahel and West Africa, para. 2 (‘General Principles’), emphasising the support of local food production and the

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ways that encourage recovery, rehabilitation, development and build capacity to satisfy future needs.561 The kind of disaster response that prevents disaster is just as important (if not more important) than providing assistance: Issues of disaster prevention, mitigation, preparedness and rehabilitation are crucial to disaster relief.562 In order to build resilience to hazards, the international legal community must develop and implement a framework that facilitates, inter alia, risk assessments, developing public awareness campaigns, implementing technical and physical risk mitigation programmes and promoting the sharing of information and knowledge.563 Humanitarian assistance in practice is often still motivated by foreign policy goals unrelated to the famine, and hence not part of a sustainable faminerelief strategy.564 Even if commitment of the states is tentative, by virtue of art. 2 (1) in conjunction with art. 11 ICESCR, the positive obligation to provide access to food is mandatory for all member states of the ICESCR – even though the extent of this obligation is still admittedly controversial.

561

562

563

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need to avoid actions that could disrupt the smooth functioning of the regional market (para. 4 [‘General Principles’], subparas. 2-3). See explicitly, Commitment five of the 1996 World Food Summit Plan of Action (available at www.fao.org/docrep/003/w3613e/w3613e00.htm). For details see Cotula/Vidar, pp. 63-64. See also art. 7 (6) of the FIAN/World Alliance for Nutrition/Institute International Jacques Maritain, International Code of Conduct on the Human Right to Adequate Food, 1997; and Principle 8 of the Code of Conduct for the International Red Cross Movement and NGOs (Annex VI to the Resolutions of the 26th International Conference of the Red Cross and Red Crescent, Geneva, 1995, available at www.ifrc.org/Docs/ idrl/I259EN.pdf); and the Principles of the Organisation for Economic Cooperation and Development’s (OECD) in the Paris Declaration on Aid Effectiveness (2005) and the Accra Agenda for Action (2008). See UN Doc. A/CN.4/590, 11 December 2007, paras. 24-28; UN Doc. A/67/10, paras. 65ff. See also the most recent report by the ILC dealing with aspects of prevention including disaster risk reduction, prevention as a principle of international law, and international cooperation on prevention (Sixth Report on the Protection of Persons in the Event of Disasters, A/CN.4/662, 3 May 2013). For details, see Nicoletti, pp. 177-198. A/CN.4/590, 11 December 2007, para. 257. Along these lines, many warning systems have been created, including the Global Information and Early Warning System (GIEWS) by the FAO, and FEWS NET funded by USAID. See, in this context, the Hyogo Framework for Action 2005-2015, World Conference on Disaster Reduction 18-22 January 2005, Hyogo, Japan (available at www.unisdr.org/2005/wcdr/intergover/official-doc/L-docs/Hyogo-framework-for-action-english.pdf); Annex 9 of Management of Nutrition in Major Emergencies, Human resource development for the management of nutrition in major emergencies: outline of an educational programme, Geneva: WHO 2000, available at www.who.int/nutrition/publications/emergencies/9241545208/en/index.html. See, e.g., the example of the DRK: Noland/Robinson/Wang, p. 759.

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v) Customary International Law Even those states that have not ratified the ICESCR usually provide emergency aid plans565 and recognise that local populations need to be actively supported in emergency situations.566 Wealthier countries protect entitlements with a general system of antipoverty programs and unemployment insurance, while most developing countries at least guarantee emergency public employment at times of massive employment loss caused by natural or nonnatural disasters.567 The prevalent practice of the international community is to grant assistance during extraordinary circumstances. International agreements such as the Food Assistance Convention or the WFS Plan of Action are indicative of this commitment. Although not legally binding, they reflect the consensus of the international community and demonstrate the emphasis the international community places on effective food aid.568 Principle 14 of the IIHL-Principles makes clear that the present principles ‘should not be interpreted as impairing or modifying any rights and obligations under international law in force’. This might be interpreted to mean that the right to humanitarian assistance, as laid down in these principles, is a valid law in force. During the debate of the ILC over the Draft Articles on the Protection of Persons in the Event of Disasters, some members of the ILC expressed the view that the existence of ‘rights’ or ‘duties’ in this area of the law was not supported by state practice.569 Nevertheless, the ILC provisionally adopted the Draft Articles on the Protection of Persons in the Event of Disasters including such rights and duties.570

565

566 567 568 569 570

A list of the legal frameworks and national plans of African countries is provided by the UNISDR ‘Inventory of National Coordination Mechanisms, Legal Frameworks and National Plans for Disaster Risk Reduction in Africa’, 2010, available at www.unisdr.org/ files/18926_africadrrinventoryfinal.pdf. See also the database on emergency which is listed by country under http://reliefweb.int/countries. Kaufmann created an overview of the countries with existing emergency aid plans (Kaufmann, Hunger als Rechtsproblem, Annex B, pp. 260ff.). Kaufmann, Hunger als Rechtsproblem, p. 163. Sen, Development as Freedom, pp. 169-70. See Kaufmann, Hunger als Rechtsproblem, pp. 167-168; see also her deliberations about the relevance of soft law in context of the right to food on pp. 168ff. UN Doc. A/67/10, Chapter V, para. 62. See also A/C.6/66/SR.25, para. 63. UN Doc. A/67/10, Chapter V, para. 52. However, the Commission had been criticised for adopting texts that did not reflect lex lata and thus constituted progressive development of the law, and was warned not to engage in the progressive development of a rule that did not enjoy sufficient state practice (A/C.6/66/SR.25, para. 66).

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It is premature to conclude that a genuine right to humanitarian assistance is globally accepted as customary law. The disagreement is illustrated by academic commentators who debate the existence of such a right.571 State practice is predominantly carried out as a moral voluntarily commitment, rather than a practice that constitutes a legal obligation under international law.572 The existing national provisions for food distribution in emergencies573 and relevant international resolutions still do show a clear trend towards recognising the right to humanitarian assistance, and there is growing irritation and indignation in the international community towards states that do not help their populations when disasters strike.574 In the aftermath of the Cyclone Nargis in Myanmar, UN Secretary-General Ban Ki-moon registered his ‘deep concern – and immense frustration – at the unacceptably slow response to this grave humanitarian crisis’.575 Politicians also expressed their outrage at the unacceptable treatment of the Burmese people. Gordon Brown, former Prime Minister of the United Kingdom (UK), accused the Myanmar government of inhumane behaviour in its neglect of the victims of Cyclone Nargis, and even demanded that the regime be held accountable for ‘failing to act’ and creating this ‘manmade catastrophe by the negligence’.576

571 572

573 574 575

576

Pars pro toto, UN Doc. A/CN.4/590, para. 257. See, e.g., the explanation of this position by the USA (which has not ratified the ICESCR but still affirmed its commitment to providing food aid) during the 19th Session of the HRC on the Resolution on the Right to Food, (available at http://geneva.usmission.gov/2012/03/22/us-joins-consensus-on-hrc-Res.-on-the-right-to-food/). See also A/67/10, para. 57. For details, see Narula, pp. 793ff.; Kaufmann, Hunger als Rechtsproblem, p. 167. See, for instance, UN Doc. A/C.6/66/SR.25, para. 45. Cf. also Cotula/Vidar, p. 41; Kaufmann, Hunger als Rechtsproblem, p. 168. Secretary-General Ban Ki-moon, Opening remarks at press conference on Myanmar, UN Headquarters, 12 May 2008 (full speech available at www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=239#.UvUTfbSRQ-U). See also the discussion on the humanitarian situation in Myanmar in the SC (SC Report, 14 May 2008, No. 4, Myanmar, available at www.securitycouncilreport.org/update-report/lookup-cglKWLeMTIsG-b-4130257.php). MacKinnon/Tran. See also France’s ambassador to the UN, Jean-Maurice Ripert, accusing the government of Myanmar during a GA session of ‘being on the verge of committing a crime against humanity by not accepting foreign aid’ (‘France angered by Burmese delays’, BBC News, 17 May 2008, available at http://news.bbc.co.uk/2/hi/asiapacific/7405998.stm).

PART B Situations of Armed Conflict: International Humanitarian Law

∵

Introduction Anything of value, concrete or abstract, can be turned into a weapon. As food is one of the essentials of any form of life, starvation is a prime candidate as a method of warfare and, indeed, has periodically been used as such for centuries.1 This section considers the particularities of situations of armed conflict, and, thus, the special regime of protection of international humanitarian law (IHL). Access to food must be protected in both peacetime and wartime. During armed conflicts, IHL comes into effect and offers another legal basis, in addition to HRL, for protecting people from hunger and malnutrition.2 Food plays an important role in today’s conflicts. Food insecurity contributes, or may be the cause of conflict.3 For example, food insecurity is the most significant contributing cause of civil strife in Africa.4 Countries with high levels of hunger and malnutrition are particularly susceptible to war.5 Korf demonstrates that the pressures of extreme poverty, lack of life opportunities and scarcity of resources may escalate social antagonisms into violent conflicts.6 On the other hand, social development may alleviate or prevent the pressures that result in armed conflict, and may contribute to the peace process.7 Armed conflict also increases the chance that famines will occur, and they disrupt traditional strategies for coping with famine. They disrupt agricultural production, hinder food distribution and economic recovery, and

1 2

3 4

5 6 7

Provost, p. 589. Report by the Special Rapporteur on the Right to Food, Jean Ziegler, E/CN.4/2002/58, 10 January 2002, para. 72; Pejic, p. 1098. For details on the relationship between IHL and HRL see Part C, pp. 245ff. For details see Wallensteen, pp.151-155. For an overview, see Moore, p. 80. For details on the correlation between land degradation, desertification and conflict, see also Kellenberger, pp. 30-31. With particular respect to the conflict in Darfur, see Böcker, p. 35; Sudan: Post-Conflict Environmental Assessment, UNEP, 2007, p. 8. For many examples, see Pinstrup-Andersen/Shimokawa, pp. 513-520; Collingham, p. 16. Korf, p. 61. Moore indicates that ensuring access to food promotes conflict resolution and prevention (ibid., p. 80).

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exacerbate famine conditions. Conflict-linked food shortages can turn into food emergencies that continue long after the fighting is officially over.8 Famines are not only unintentional side effects of warfare. Sometimes starvation is deliberately deployed to weaken and starve opponents into submission.9 Food is a fundamental basis for every wartime economy. Every sector of the war economy relies on the food sector to provide the necessary amount of calories for the physical activity of the soldiers.10 Hunger, as a weapon, debilitates the strength of an army and demoralises the population. When the ‘home front’ collapses, it also weakens the army that fights for it.11 A notorious example of an armed conflict in which starvation was deliberately used as a method of warfare was Biafra’s war of secession from Nigeria, 1967-1970. Spurred by ethnic and political tensions, the South-Eastern provinces of Nigeria proclaimed an independent Republic of Biafra and attempted to secede.12 The Federal Nigerian Army could not suppress the revolt and rebel forces would not capitulate. The Federal Nigerian Army then laid siege to the Biafran area and blocked humanitarian relief to the Biafrans.13 In this case, the Nigerian government implemented an overt strategy of civilian starvation against Biafra, claiming that it was a legitimate form of warfare.14 Both besieger and besieged were willing to starve the civilian population to achieve their ends. In January 1970, in the face of this humanitarian disaster, and after many civilians died from hunger, Biafra capitulated.15

Two Ways to Efffect Starvation Starving an opponent may be accomplished in different ways. The most common tactic is for adversaries to destroy essential supplies. The scorched earth 8

9 10 11 12 13 14 15

For details see Messer/Cohen/D’Costa, pp. 5-11; Armed Conflict and Hunger – How Conflict Causes Hunger, Hunger Notes (the online publication of World Hunger Education Service [WHES]), available at www.worldhunger.org/articles/fall2000/messer3.htm; Mourey; Marston; Chinkin, The Protection, pp. 10-16. Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, para. 19. Collingham, p. 9. See also Rosenblad, International Humanitarian Law, pp. 104-105; Thomas, p. 116. For the background, see Mertens, pp. 183-186. Mudge, p. 229. A detailed analysis of the blockade is provivded in Mertens, pp. 191-199. Provost, p. 632. The extent of starvation, and the reactions of the international community, are critically described in Mudge, pp. 229-232. Cf. also Provost, p. 632.

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strategy, an extreme example, destroys anything that might be of use to the enemy (e.g. through forest fires, breaching dykes or flooding cultivated land with sea water). A scorched earth policy may be employed in defence of one’s own territory against invasion, or in retreat from the territory of the opposing side.16 Another way to starve a population is to strategically lay siege, use blockade tactics, or employ contraband measures that disrupt the food distribution chain. In this way, famine is deliberately inflicted when market supplies of food are cut off, or when food relief is diverted from intended beneficiaries to the military or their supporters.17 Part B contains a consideration of both the above strategies. Its analysis is limited to scenarios in which a state starves its own population. Note that ‘own’ is not defined as ‘from their own camp’. It refers to the entire population situated within the national territory of the affected state.18 For example, a segment of the entire population that is targeted because it shares nationality or ethnicity with the adversary is still considered the state’s own population. Possible scenarios covered by this definition are described briefly in the following analysis. The protections offered by IHL only apply during situations of armed conflict, according to arts. 2 and 3, common to the four 1949 Geneva Conventions for the Protection of War Victims19 (GCs). IHL applies in situations of international armed conflicts (IACs), and non-international armed conflicts (NIACs). An armed conflict is international when it arises between two or more states;20 an armed conflict is non-international when it arises within the territory of a single state (civil war).21

16 17 18 19 20

21

Sandoz/Swinarski/Zimmermann, para. 2116; Rosenblad, International Humanitarian Law, p. 103. Armed Conflict and Hunger – How Conflict Causes Hunger, Hunger Notes (the online publication of WHES), available at www.worldhunger.org/articles/fall2000/messer3.htm). See below, pp. 10ff. Geneva Conventions I-IV, Geneva, all adopted on 12 August 1949 and entered into force on 21 October 1950. Art. 2 (1) common to GCs defines ‘IAC’ as ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’. Art. 3 common to GCs refers to NIAC as ‘armed conflicts not of an international character occurring on the territory of one of the High Contracting Parties’. See also the more restrictive approach of art. 1(1) of the ‘Protocol Additional (II) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)’ (‘APII’) of 8 June 1977, entered into force on 7 December 1978.

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When starvation is deployed during NIACs, it is primarily against rebel groups, as illustrated in the example of the civil war in Nigeria. However, a state government may also deliberately inflict a famine on its own population during an IAC. The defensive scorched earth tactic, for instance, may also be used by states defending territory against foreign invaders. The Russian army used this tactic against Napoleon’s invasion in 1812 when they burned their own villages and crops to make sure that invading French troops would not have access to local food sources. The tactic successfully weakened the French soldiers.22 Though its aim may not be to starve its own population, the state may tolerate that starvation as an unwelcome but acceptable side effect. When states are not employing scorched earth tactics, they rarely starve their own populations during IACs. But a state might employ starvation tactics as part of an offensive attack against the occupation of its own national territory, when that territory is under the control of an enemy state. In addition, genocidal attacks may be directed against ethnic groups within own territory, especially when those ethnic groups are believed, by the state, to be aiding the enemy. In Chapter I of Part B, I clarify the general conditions relevant to the application of IHL. In Chapter II, I describe the specific provisions IHL offers against starvation. Given the limited scope of this book, I exclude the following situations from this analysis of IHL:

Exclusion of the Law of Belligerent Occupation and Prisoners of War This analysis covers the situation when governments use starvation as a weapon against a segment of their population that resides in national territory controlled by a foreign state. Temporary suspension of de facto control (through occupation, for example) does not affect the legal status of the territory in question.23 During ‘belligerent occupation’, the occupying state exercises effective and exclusive control over a part of the territory, but the occupied area

22 23

See the detailed descriptions in Caulaincourt, p. 9. Art. 4 API. See also art. 42 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land (‘Hague Regulations’, annexed to the Convention [IV] Respecting the Rules of War on Land which was adopted on 18 October 1907 and entered into force on 26 January 1910).

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is not within the legal boundaries of the occupying state.24 The examination of the law of belligerent occupation with its distinct rights and duties of an occupying state25 thus falls outside the scope of this book, precisely because occupied territory is never considered as national territory of the occupying state. ‘Belligerent occupation’, as defined under IHL, is limited to situations of foreign occupation,26 and this analysis is limited to situations in which states impose famine conditions on their own national territory. Consequently, when parts of a national territory fall under the control of rebel groups, these rebels do not have the rights and duties of an occupying power. Belligerent occupation applies only to IACs. NIACs between rebel groups and the official government are excluded.27 The general rules of the law of NIACs are applicable, that demand that rebels treat the controlled population humanely under all circumstances.28 The deliberate starvation of prisoners of war is also excluded from this analysis.29 When combatants fall prisoner to the enemy, they are subject to special treatment.30 Their right to food during internment is specially regulated (art. 26 GCIII). Fighters captured during NIACs are regulated by common art. 3 GCs and art. 5 of the 1977 Additional Protocol II31 (APII).32

24

25

26 27 28 29

30 31

32

Benvenisti defines belligerent occupation as ‘a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State’s volition’ (ibid., p. 1). See also Kolb/Hyde, p. 231; and CDDH/407/Rev. 1, p. 463, para. 52; CDDH/III/369, p. 516. The relevant provisions are arts. 55, 59ff. of Convention (IV), relative to the Protection of Civilian Persons in Time of War (GCIV); art. 69 API, and art. 43 of the Hague Regulations. For details, see Kaufmann, Hunger als Rechtsproblem, pp. 184-188; Gasser/Dörmann, p. 266. Benvenisti, p. 1. Kolb/Hyde, p. 69; Gasser/Melzer, p. 140. Fleck, para. 1215 (4a). Common art. 3 of the GCs; APII. See the definition of ‘starvation as a weapon’ below, which includes only the starvation of persons not in the physical custody of those who target them (p. 12). Starvation of people in detention is beyond the scope of this analysis, whether they are prisoners of war, combatants, members of the armed force or civilians. Convention (III), relative to the Treatment of Prisoners of War (GCIII), art. 4. ‘Protocol Additional (II) to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)’ of 8 June 1977. See also Krähenmann, para. 720 (1); Kaufmann, Hunger als Rechtsproblem, pp. 175-180; Gasser/Melzer, p. 121.

I.

Application of International Humanitarian Law

I explained that the particular system of protection provided by IHL is only applicable during situations of armed conflict and outlined the possible scenarios in which starvation as a method of warfare can be applied within a state’s national territory. Thereby, I highlighted that starvation of the own population may occur during both NIACs and IACs, but is mainly applied in NIACs. This section thus takes NIAC as its primary focus, but also addresses the relevant regulations in IAC. This focus does not reduce the value of the present research, since most of today’s armed conflicts are internal.1 In this Section I, I address the overall application of the regime of IHL, explain why the question of application is particularly relevant and then elaborate the necessary conditions in detail. In Section II, I cover the specifically relevant IHL norms and apply them to the two most common scenarios of starvation as a method of warfare (destruction of food supplies and food blockade). Different regulations apply to IACs and NIACs, so correct classification is important. According to the traditional doctrine, IHL was limited to armed conflicts between states. NIACs were considered to be purely internal matters for states, and no international law provisions applied to them.2 Today, IHL about NIAC is so advanced that legal scholars have even considered dropping the traditional distinction of the two types of conflict.3 The jurisprudence of

1

2

3

Final Report on the Meaning of Armed Conflict in International Law, International Law Association (ILA), Committee on the Use of Force, The Hague Conference (2010) (‘ILA-Report on Use of Force 2010’), p. 10; Report of the Secretary-General to the SC on the Protection of Civilians in Armed Conflict, S/2001/331, 30 March 2001, paras. 15 and 65; Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010, paras. 7 and 26; Kellenberger, p. 13 and pp. 101-102. For details on the roots of this distinction and on the historical development of IHL that relates to NIAC, see Green, pp. 66-67; Moir, p. 129; Abi-Saab, pp. 210-214; Green, pp. 26ff.; Sassòli/Bouvier/Quintin, pp. 139-142. For many examples, see Stewart J., pp. 313ff. Compare also the definition of armed conflict used by the ILA: ILA-Report on Use of Force 2010, pp. 28-32.

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the ICTY,4 state practice and treaties5 similarly demonstrate that the rules governing IAC and NIAC are converging.6 This is a welcome development, since victims of both kinds of conflict need similar humanitarian protection. Nevertheless, there are still essential distinctions between NIACs and IACs. The dichotomy is deeply embedded in the GCs and was confirmed in 1977 when the two Protocols Additional to the Geneva Conventions of 12 August 1949 (APs) were adopted. Blind application of uniform rules would appear to contradict the principle of the sovereignty of state parties.7 I thus present the provisions separately, but also indicate where uniform rules have since been developed in customary law to cover both kinds of conflicts. In the first section, I outline the relevant law governing NIACs and the particular threshold for its application (1). In the second section, I consider the possibility that starvation policies can reach the threshold of armed conflict (2). In the third section, I describe the difficulties caused by classifying contemporary armed conflicts, and illustrate them with an example from the armed conflict in the West-Sudanese province Darfur (3). As a result, I describe the underlying concept in the specific analysis performed in the subsequent section on the prohibition of deliberate starvation (II).

1

Non-International Armed Conflict

Applicable Law NIACs are armed confrontations that take place within the territory of a single state, and in which the armed forces of no other state are engaged against the central government.8 Internal disturbances and tensions do not amount

4

5

6

7 8

See ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, A., paras. 96-136. See, inter alia, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 823 UNTS 231 (entered into force on 9 March 2004), which applies to all armed conflicts. For a good overview, see the ILA-Report on Use of Force 2010, pp. 8-9; Meron, The Humanization of Humanitarian Law, pp. 260-263; and Sassòli/Bouvier/Quintin, pp. 323326. See also Gasser/Melzer, p. 66; Götze, pp. 95-96. See the definition used in the San Remo Manual on the Law of Non-International Armed Conflicts (‘San Remo NIAC Manual’), International Institute of Humanitarian Law, San Remo 2006, p. 2.

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to a NIAC.9 In contrast to the wide range of conventions applicable to IAC,10 only limited treaty law governs NIAC. Common art. 3 GCs and – if ratified – the APII are particularly relevant for NIACs.11 In addition to treaty law, there is a growing body of customary law that applies to NIAC.12 The ICRC Study on the Customary Rules of IHL (ICRC Customary Study) has confirmed the customary nature of both common art. 3 GCs and APII, and demonstrated that many rules initially designed to apply only in international conflicts also apply as customary rules in NIAC.13 However, the customary status of humanitarian rules in domestic situations must be evaluated cautiously. APII is the first treaty to specifically regulate the conduct of a state’s armed forces on its own territory. With only 167 parties (75% of all states),14 it is not as widely recognised as the universally applicable GCs of 1949.15 The poor record of compliance even with common art. 3 GCs has led some scholars to doubt whether these norms are generally accepta-

9 10

11

12 13

14

15

See specifically, art. 1 (2) APII. All GCs are applicable (see common art. 2 GCs); API (see art. 1 [3] API); and the 1907 ‘Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land’ (‘Hague Convention IV’, adopted in The Hague on 18 October 1907, and entered into force on 26 January 1910). Comparing APII, with its mere 15 articles, to the more than 80 articles of API, Henckaerts sees a ‘significant disparity in regulation […], particularly when it comes to detailed rules and definitions’ (Henckaerts, Study on Customary International Humanitarian Law, p. 178). For details of the assessment of customary status in general, see Henckaerts, Study on Customary International Humanitarian Law, pp. 179-184. See also below on p. 51. See Henckaerts/Doswald-Beck, database available online at www.icrc.org/customaryihl/eng/docs/Home. The Secretary-General identified the ICRC study as a significant contribution ‘to the process of identifying fundamental standards of humanity by clarifying, in particular, international humanitarian law rules applicable in non-international armed conflict’ (UN Commission on Human Rights, Fundamental standards of humanity, Report of the Secretary-General to the Commission on Human Rights, E/ CN.4/2006/87, 3 March 2006, Chapter II, p. 5). The ICRC study was harshly criticised by academic scholars: see, pars pro toto, Dinstein, The ICRC Customary International Humanitarian Law Study, pp. 1–15; Bothe, pp. 143-178; or Schmitt, p. 135. As of January 2014, the API had not been ratified by e.g. the USA, Turkey, Israel, Iran, Pakistan, and Iraq. The USA, Iran and Pakistan yet signed it on 12 December 1977 with the intention of ratifying it. A list of the ratifying state parties is provided at www.icrc.org/ applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=475. As of January 2014, every member state of the UNO is a party to all four GCs.

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ble.16 Still, it is recognised that the core of the customary rules for NIACs is contained in common art. 3 GCs,17 a position confirmed by the ICJ.18 Also, the ICTY stressed, ‘[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.’19 States have an interest in maintaining the rule of law in the face of rebellion (reciprocity).20 The application of the law of NIAC is ambiguous, so I offer an analysis of deliberate starvation that examines the relevant state practice case-by-case for each specific norm. Manuals of military law and legislation passed by states to implement IHL internally provide excellent evidence of the application of the principles in practice, and serve as a statement of opinion juris.21 Threshold for a Non-International Armed Conflict It is first important to distinguish between NIAC and violence that falls below that threshold. NIACs require a higher threshold of violence than do IACs. In interstate relations, the concept of sovereignty and the rigid prohibition of 16

17

18

19

20 21

Meron, for instance, raised in 1987 the question if the breaches of the rules governing NIAC could amount to a state practice that nullifies the customary status of a provision (Meron, The Geneva Conventions as Customary Law, pp. 368-370). However, he has been less critical since then and finally even spoke out to a large extent in favour of a merging of both concepts (see Meron, International Criminalization, p. 558; Meron, The Humanization of Humanitarian Law, pp. 262-263). In favour of the acceptance of common art. 3 CGs as customary international law see, inter alia, Cassese, The Geneva Protocols of 1977, p. 108; Report of the UN Darfur Commission, p. 44, para. 157; San Remo NIAC Manual, p. 3. See also Cassese, The Geneva Protocols of 1977, p. 108. Yet, Fleck describes that it is still true that states are reluctant to apply the laws of war in internal conflict (Fleck, para. 1202 [2]). The ICJ held that common art. 3 GCs constitutes a minimum yardstick which reflects what the Court in 1949 called ‘elementary considerations of humanity’ (see ICJ, Corfu Channel Case, Merits, Judgment of 15 December 1949, ICJ Reports 1949, p. 22), and represents customary international law in both IAC and NIAC (ICJ, Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. USA], Merits, Judgment of 27 June 1986, ICJ Reports 1986, pp. 113-114). ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 119. Fleck, para. 1212 (1). Meron, The Geneva Conventions as Customary Law, p. 361; Henckaerts, Study on Customary International Humanitarian Law, p. 179. The relevant information about state practice is provided by the ICRC Customary Study (Henckaerts, The ICRC Study on Customary International Humanitarian Law, pp. 135-181).

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force imply that almost any use of force between states provokes an IAC. Domestic use of force, however, is not prohibited by international law, and thus must be carefully evaluated to determine if it constitutes a NIAC.22 The use of force among private individuals and between private individuals and public authorities is traditionally governed by domestic criminal law.23 Internal confrontations only rise to the level of armed conflict when the threshold of violence requires the use of military means and methods employed.24 To reach the threshold, the intensity of internal disturbance and tensions must escalate to a level of violence that law enforcement can no longer address.25 Thus, the ICTY formulated the constitutive criterion of ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’26 to distinguish NIAC from banditry, riots, isolated acts of terrorism or similar situations. This describes violence that is no longer sporadic acts, and is carried out by organised armed groups.27 These criteria were confirmed by both the ICTR28 and the ICC,29 and are enshrined in art. 8 (2) (f) Rome Statute.30 However, common art. 3 GCs and APII have a different scope of application.31 The vague formulation of common art. 3 GCs leaves ample room for 22 23

24 25 26

27 28

29

30 31

Cf. art. 2 (4) UN Charter. A lucid examination of the threshold of NIAC provides Cullen, pp. 117-158. See also Melzer, Targeted Killing, p. 256. Sassòli, Bouvier and Quintin speak of a ‘monopoly of the legitimate use of force within its boundaries’ that is inherent in the concept of the modern state (Sassòli/Bouvier/ Quintin, p. 323). For details, see Sandoz/Swinarski/Zimmermann, paras. 4471-4479. Cf. art. 1 (2) APII. ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 70; confirmed in ICTY, The Prosecutor v. Delalic Zejnil, Case No. IT-96-21-T, Judgment of 16 November 1998, para. 184. For details about these requirements, see ILA-Report on Use of Force 2010, pp. 28-32; Cullen, pp. 117-139; Marouda, pp. 208-211. ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment of 2 September 1998, para. 619; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment of 6 December 1999, para. 92. ICC, The Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the confirmation of charges of 29 January 2007, para. 233. See also ICJ, Democratic Republic of the Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo, Separate Opinion of Judge Simma of 19 December 2005, para. 23. The ILA-Report on Use of Force 2010 provides an authoritative overview of the historical development of the concept of ‘armed conflict’, pp. 9-28. For details, see Cullen, pp. 25-114.

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arguments over interpretation. Once seen as a major defect, this vagueness is now considered one of its main advantages since it does not rule out a broad interpretation.32 APII has a more restrictive approach to NIACs, and does formally exclude some situations. Both common art. 3 GCs and APII apply to armed conflicts that do not qualify as IACs (in the sense of art. 1 of 1977 Additional Protocol I33 [API] resp. common art. 2 GCs), and ‘which take place in the territory of a High Contracting Party’.34 Art. 1(1) APII, however, narrows the spectrum of application by adding the qualification that the conflict must take place ‘between its armed forces and dissident armed forces or other organized groups’ (i). This excludes, for instance, conflicts between two or more rebel groups that do not involve government forces.35 Furthermore, art. 1 (1) APII requires that these dissident forces should be ‘under responsible command’ (ii) and ‘exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (iii).36 These conditions are restrictive, but the limitations on the scope of application of APII do not change the pre-existing conditions for application of common art. 3 GCs. Instead, art. 1 APII explicitly emphasises the autonomy and continuous validity of common art. 3 GCs.37 This Part B will not address situations that fail to pass the threshold of common art. 3 GCs or art. 1 (1) APII, since these situations are covered by general HRL rather than IHL. The fourth paragraph of the preamble to APII confirms that ‘[t]he human person remains under the protection of the principles of humanity and the dictates of the public conscience’.38 This general principle, inspired by the so-called Martens clause, was originally contained in the Preambles of the 1899 and 1907 Hague Conventions. The ICJ confirmed, in its Nuclear Weapons Advisory Opinion, the principle of ‘elementary considerations of humanity’ and pointed out that ‘these fundamental rules are to be observed by all States whether or not they have ratified the conventions that

32 33

34 35 36 37 38

Abi-Saab, p. 216. ‘Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)’ of 8 June 1977, entered into force on 7 December 1978. Common art. 3 GCs, and art. 1 (1) APII. Abi-Saab, p. 216. Art. 1 (1) APII. More on these limitations in Sandoz/Swinarski/Zimmermann, paras. 4460-4470. For historical details, see Abi-Saab; Kaufmann, Hunger als Rechtsproblem, pp. 211ff. See also art. 1 (2) API. For information about the principles of humanity, see Fleck, para. 1206.

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contain them, because they constitute intransgressible principles of international customary law’.39

2

Use of Starvation as Use of Force?

Starvation as a Weapon? The title of this book, ‘Starvation as a Weapon’, suggests that starvation may be a weapon in the technical sense.40 Starvation can kill, and can therefore be compared to a weapon. Lewis asked, dramatically, what was ‘the deadliest weapon of World War II’? He asserts it was starvation.41 During World War II, more people died from starvation, malnutrition and its associated diseases than from direct military action.42 Thus, it seems fair to ask if deliberately starving a population can amount to an ‘armed conflict’, as defined under IHL. Given the restrained approach of the international community when approaching NIAC, it would be a stretch to claim that domestic starvation, carried out without the use of traditional weapons, amounts to an armed conflict. IHL was originally characterised as jus in bello – the law of war.43 Grotius explained war as ‘[...] the situation of those who dispute by force of arms [...]’.44 The GCs (and later also the APs) replaced the term ‘war’ with the term ‘armed conflict’. ‘Armed conflict’ is still interpreted to mean waging war with material weapons, including manufactured weapons, but also sticks, stones, fire or

39

40 41 42

43

44

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 257, para. 79. See also ICJ, Corfu Channel Case, Judgment of 9 April 1949, ICJ Reports 1949, p. 22. ‘Weapons’ and ‘arms’ are synonyms. There is no internationally accepted definition of either (see, for instance, Bellal/Casey-Maslen/Giacca, p. 3). Lewis. Collingham, p. 1. She claims that at least 20 million deaths resulted from starvation, malnutrition and its associated diseases, while there were 19.5 million military deaths (ibid.). See 1899 Hague Convention (Convention [II] with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899) and 1907 Hague Convention IV, both still refer to the ‘law of war’. For details, see Green, pp. 22-23. Grotius, p. 1; German translation: J.H. v. Kirchmann, Des Hugo Grotius drei Bücher über das Recht des Krieges und Friedens, in welchem das Natur- und Völkerrecht und das Wichtigste aus dem öffentlichen Recht erklärt werden, Berlin 1869, p. 68.

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water.45 Despite its fatal effect, starvation alone does not meet the conditions of an armed confrontation under established IHL. I would rather describe such situations of deliberate famines as ‘political’ conflicts.46 Starvation Policies Evoked under Threat of Armed Force In practice, it makes no difference whether one can define deliberate starvation per se as an armed conflict: Starvation is usually imposed on the population by destructive attacks or by food blockade. By their very nature, destructive attacks are carried out with material means (such as manufactured weapons, sticks, stones or fire) that can usually be considered ‘arms’ within the meaning of IHL. Food supplies are also usually blockaded by force, since otherwise a hungry population would simply take them. In addition, art. 1 (1) APII is not applicable unless participating parties to the conflict are armed.47 It is unlikely that armed groups would allow the state to starve them without resorting to use of those arms. It is thus more interesting to consider if starvation tactics amount to an armed conflict when they are imposed under threat of armed force. It is only useful to pose this question when no one is injured directly by weaponry, but only indirectly, by lack of food. The Colombian government, for instance, deliberately blocked foodstuffs in isolated rebel areas, so that people starved to death.48 Would this alone (apart from other violence) qualify as an armed conflict? Or can a state remain below the IHL threshold by strategically deploying starvation to achieve military goals? As defined above, NIACs are protracted armed confrontations between armed government forces and the forces of one or more armed non-government groups, or between non-government groups in a conflict that arises on the territory of a single state. The armed confrontation must reach a mini-

45 46 47 48

Wallensteen/Sollenberg, p. 643 (Appendix 2, Defining Armed Conflict). Mrázek compares the terms ‘war’ and ‘armed conflict’ (ibid., pp. 105-106). Cf. also Green, p. 54. See, e.g., also the classification of economic sanctions as a measure not involving the use of armed forces under art. 41 UN Charter. It refers to ‘armed forces’ and ‘armed groups’. For details about the Colombian ‘Confinamiento’, see ‘Colombia: Confinamiento y restricciones al acceso humanitario Tibú (Norte de Santander)’, Informe de Situación No.  1 (06/07/2013), OCHA Colombia, available online at http://reliefweb.int/sites/ reliefweb.int/files/resources/130706_Confinamiento_Tibu_Informe_de_Situacion_ No._1.pdf; ‘Colombia: Confinamiento poblacional. La otra realidad devastadora del conflict’, Agencia Prensa Rural, Freddy Ordóñez, available online at www.gloobal.net/ iepala/gloobal/fichas/ficha.php?entidad=Textos&id=6745&opcion=documento.

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mum level of intensity, and the parties involved in the conflict must be minimally organised. Starvation imposed under threat of armed force might fail to meet the ICTY’s criterion of intensity, since the decision is based on the number and intensity of armed clashes, the number of fighters involved, the seriousness of attacks, the type and quantity of weapons used, the duration and territorial extent of fighting, the extent of destruction of property, the blocking or besieging of towns, the displacement of the population, or the number of casualties. No single factor is necessarily determinative. If a single factor rises high enough, that may satisfy the criterion of intensity even if other factors are low.49 Can famishment imposed by the threat of arms ever reach the necessary level of intensity? Wallensteen and Sollenberg claim that the use of armed force must lead to at least 25 battle-related deaths. Hunger may cause many people to die, but it is not clear if sufficient intensity can be reached if deaths are caused only by indirect armed force. Starvation victims do not die in a blaze of gunfire, but it should make no difference whether the deaths of hostile parties are caused directly or indirectly by armed force. Wallensteen and Sollengerg’s condition that arms should be used ‘in order to promote the parties’ general position in the conflict, resulting in deaths’50 is arguably satisfied: Indirect harm can indeed weaken the enemy. A comparison of the use of starvation with the use of force, as banned by art. 2 (4) UN Charter, is also useful. The ICRC Commentary classifies movements provoked by the destruction of objects indispensable to the survival of the civilian population as ‘equivalent to the use of force’,51 since the population has no other recourse than to flee. Food supplies are indispensable to the survival of the civilian population. On the basis of the ICRC’s interpretation, cross-national starvation strategies may be considered as banned by art. 2 (4) UN Charter, and may also indicate the existence of an armed conflict, since the use of force between states is almost always an indicator of IAC.52 49

50 51 52

See, pars pro toto, ICTY, The Prosecutor v. Ljube Boskoski and Johan Tarculovski, Case No. IT-04-82-T, Trial Chamber, Judgment of 10 July 2008, para. 177. For an analysis of the relevant jurisprudence of the ICTY, see ILA-Report on Use of Force 2010, pp. 29ff. Wallensteen/Sollenberg, p. 643 (Appendix 2: Defining Armed Conflict). Sandoz/Swinarski/Zimmermann, paras. 4812. The prohibition of the use or threat of force in art. 2 (4) UN Charter ( jus ad bellum) is to be distinguished from the law of armed conflict ( jus in bello), but it still had a decisive impact on the definition of war (Mrázek, p. 97; for details, see Kolb, Origin of the Twin). It is further distinctive that art. 2 (4) UN Charter equally prohibits use of force and mere threat of force against the territorial integrity or political independence of any state.

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Starvation Policies as Hostilities? Even if one takes a narrower approach and classifies such indirect use of force as low-level (comparable to disturbances and tensions excluded from the concept of armed conflict), one can still qualify deliberate famishment as ‘hostilities’ in the context of an existing armed conflict. The term ‘hostilities’ is defined by the ICRC as ‘the (collective) resort by the parties to the conflict to means and methods of injuring the enemy’.53 It determines the actual fighting of an armed conflict and is particularly relevant to define who directly participates in hostilities.54 The notion of ‘direct participation in hostilities’ describes the specific hostile acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict. Depending on the circumstances of an individual case, it may be possible to qualify the deliberate use of starvation as ‘hostilities’: Starvation can reach the threshold of harm that indicates direct participation in hostilities, a level that is ‘likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack’.55

3

Problematic Classifijication of Contemporary Armed Conflicts

Contemporary armed conflicts do not fit easily into the traditional dichotomy between NIACs and IACs.56 The challenge of classification is illustrated by the armed conflict in Darfur, where starvation has been deliberately and persistently used as a war strategy against the population on a large scale.57 Ethnic tensions and the struggle for scarce resources shape this stereotype of an African conflict.

53 54

55 56 57

See also Definition of Aggression, GA Res. 3314 (XXIX), 14 December 1974, preambular para. 7. Melzer, Interpretive Guidance, p. 43 (referring to the definition used in art. 22 Hague Regulations). ILA-Report on Use of Force 2010, p. 9. See, for instance, art. 51 (3) API and art. 13 (3) APII, which states that civilians are immune from direct attack ‘unless and for such time as they take a direct part in hostilities’. See the constitutive elements of direct participation in hostilities, elaborated in Melzer, Interpretive Guidance, p. 46 (p. 995 of the available online version of the IRRC). The changing nature of contemporary conflicts is described in Marouda, pp. 213ff.; Kellenberger, pp. 101-102. Report of the UN Darfur Commission, p. 83, para. 315.

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The Armed Conflict in Darfur as a Paradigm A short history highlights the origins and complex interrelations between the different parties in Darfur, where conflict began in 200358 and still continues. The Darfur conflict began with tribal feuds caused by the pressures of climate change and desertification.59 Native African farming tribes (notably the Fur) competed with ethnic Arab nomadic tribes for scarce resources, politically polarising the two ethnicities. The conflict escalated in 2003 when hostilities broke out between Darfurian rebel groups and government-supported Arab militias (Janjaweed).60 The protracted armed violence has been intense, and the existence of an armed conflict in Darfur indisputable, and has been affirmed by the parties to the conflict.61 It is more difficult to qualify the armed conflict within the dichotomy presented by the IHL. The Darfur rebel insurgency against the Sudanese central government might, at first sight, be classified as a typical NIAC, but the conflict also has an international dimension. Neighbouring conflicts in Chad and Libya in the 1980s and 1990s also reached into the Darfur region.62 The domestic conflict between Darfurian rebels and the Sudanese government spread over its borders into Chad and the Central African Republic. Janjaweed militias launched armed attacks on the territory of Chad, and massive refugee flows into Chad destabilised that state.63 The Darfur conflict has also become a proxy war between Sudan and Chad: Each government is reportedly trying to destabilise the other by logistically and financially supporting the insurgency movements of its opponent.64 Marischka calls this conflict in the borderland between Chad and Sudan an ‘international conflict which integrates two 58

59

60

61 62 63 64

Braukämper explains that this armed conflict is an escalation of an already smouldering conflict, and has origins already in the distant past (Braukämper 2007, p. 34). For historic background, see Flint/de Waal. Sudan: Post-Conflict Environmental Assessment, UNEP, 2007, p. 20. For details about the further factors (such as the Sudanese land reforms, the marginalisation and the ethnic homogeneity), see Report of the UN Darfur Commission, 2004, pp. 20ff., paras. 53ff.; Böcker, pp. 34ff. The main Darfurian rebel groups are the Sudanese Liberation Movement/Army and the Justice and Equality Movement. Both rebel groups organised themselves to revolt against the Sudanese government in Karthum. For details, see the Report of the UN Darfur Commission, pp. 20-23/paras. 59-62; Braukämper, 2007, pp. 36-37; Böcker, pp. 81-82. Report of the UN Darfur Commission, paras. 98ff., pp. 31ff.; Böcker, pp. 83-84. Report of the UN Darfur Commission, paras. 75-76, pp. 26-27. For details, see Böcker, pp. 68ff.; Report of the UN Darfur Commission, para. 58, p. 22, and para. 203, p. 57. Marouda, p. 232. See Yihdego, pp. 47-49; Prunier, para. 1.

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civil wars’.65 Many international interventions have complicated this already complex system of interrelationship, including the deployment of international troops (AU Mission in Sudan,66 AU-UN Hybrid Operation in Darfur,67 the UN Mission in Central African Republic and Chad68), and the UN SC decision to transfer the situation in Darfur to the ICC.69 However, an armed conflict with cross-border dimensions is not necessarily intergovernmental.70 Despite its international dimensions, the Darfur conflict is still widely regarded as a NIAC.71 Marouda examines the phenomenon of ‘exported’ armed conflicts that spill into neighbouring states and the recent phenomenon of ‘internationalisation’ evoked by indirect involvement (effective control) or direct involvement (direct intervention) of third states.72 Marouda concludes that the Darfur conflict is still internal. She applies, inter alia, the Tadic test73 and explains that the neighbouring states of

65 66

67

68

69

70 71

72 73

[This is the author’s translation], Marischka, p. 1. AU Press Release 51/2004 of 28 May 2004 (available at www.africa-union.org/DARFUR/ homedar.htm); Decision Assembly/AU/Dec.54(III) on Darfur, adopted by the 3rd Ordinary Session of the Assembly of Heads of State and Government of the AU, held in Addis Ababa, from 6 to 8 July 2004. For details, see Beck, 2007, para. 1; Böcker, p. 92. SC Res. 1769 [2007] of 31 July 2007. See also Report of the Secretary-General and the Chairperson of the African Union Commission on the hybrid operation in Darfur, 5 June 2007, S/2007/307/Rev.1; SC-Res. of 29 July 2011 (S/RES/2003 [2011]). For details, see Böcker, pp. 92-93; Marouda, p. 231. SC Res. 1778 (S/Res/1778 [2007]) of 25 September 2007; Report of the UN- SecretaryGeneral of 1 December 2010 (S/2010/611). See also the subsequent SC Resolutions 1861 (S/RES/1861 [2009]) of 14 January 2009 and 1923 (S/RES/1923 [2010]) of 25 May 2010. For details see Marouda, p. 232; critical Marischka, pp. 2ff. SC Res. of 31 March 2005 (S/RES/1593 [2005]). Two arrest warrants were issued by the Pre-Trial Chamber I against the Sudanese President Omar Hassan Ahmad Al Bashir for crimes against humanity and war crimes (Arrest Warrant of 4 March 2009 [ICC-02/0501/09-1]), and for genocide (Second Arrest Warrant of 12 July 2010 [ICC-02/05-01/09-95]). Cf. Kellenberger, p. 157. See, for instance, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (ICC-02/0501/09-1), p. 4; Yihdego, p. 51; Geneva Academy of IHL and Human Rights, Rule of Law in Armed Conflicts Project, Applicable International Law, Sudan (www.adh-geneva.ch/ RULAC/applicable_international_law.php?id_state=205); Human Rights Watch, Global Trade, Local Impact: Arms Transfers to all Sides in the Civil War in Sudan, August 1998, p. 2; Report of the UN Darfur Commission, pp. 26-27, paras. 75-76. Marouda, pp. 214-217. For further details, see Dinstein, The Conduct of Hostilities, pp. 26-28; Fleck, para. 1201 (3). ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A., Appeals Chamber, Judgment of 15 July 1999, paras. 99-145.

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Sudan do not wield ‘overall control’ over the Darfur rebel groups.74 Therefore, the stricter ‘effective control’ test, followed by the ICJ, does not need to be addressed.75 The difficulty of classifying the Darfur conflict illustrates a general problem that might, in practice, poorly protect the population if the applicable provisions remain controversial. Conflicts of mixed character may provide an opportunity to use the often more extensive standards applicable to IACs. The ICJ and legal scholars therefore propose to disassemble mixed conflicts into their components and to separately analyse the different legal relationships.76 Concept of this Analysis Chapter I covered the range of possible scenarios in which starvation might be inflicted on a state’s own population, and demonstrated that starvation of the own population can in some cases have an international component. The Darfur conflict was used to illustrate the interconnections between modern conflicts, and to show how a conflict shifts from a NIAC to an IAC. In the following Chapter II, I will thus analyse both the provisions of the law of NIACs, and the corresponding standards in IACs, in context of state duties.77 The two branches of law should not be considered in isolation since they often share the same basic principles, and many of their provisions were developed

74 75

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77

Marouda, p. 233. See also Yihdego, p. 49. Cf. ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA), Merits, Judgment of 27 June 1986, paras. 105-115. The ‘effective control’ test was confirmed in its Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, paras. 403-404, 406. In this particular case, the differences of the two tests can be neglected because it already failed to meet the broader Tadic test. For details about the differences, see Cassese, The Nicaragua and Tadic Tests, pp. 649−668. This approach is followed by the ICJ in its Nicaragua Case (Military and Paramilitary activities in and against Nicaragua [Nicaragua v. USA], Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 114, para. 219). Legal scholars who support the approach include, inter alia, Allen Ch., p. 11 (FN 34); or Götze (ibid., pp. 95-96). See also Yihdego, who is sceptical that the practice can be applied to the particular situation in Darfur; Yihdego, p. 52. This analysis is limited to the duties of states. However, non-state actors are also bound by IHL. For details, see Sassòli/Bouvier/Quintin, pp. 347-348; Fleck, para. 1207 (2); Gasser/Melzer, p. 71; San Remo NIAC Manual, p. 3. The following deliberations about state obligations can be applied analogously to non-state actors.

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jointly. Their analogous relationship should be fleshed out to clarify certain provisions and to fill logical gaps.78 Despite the recent convergence of the law of IAC and NIAC, current treaty law and customary law still make significant distinctions between the two kinds of conflicts.79 Chapter II contains a discussion of each of the relevant provisions, and also offers a joint analysis of some rules where appropriate. The most important difference between the two branches is the status of fighters. IAC traditionally reserves the term ‘combatant’ to describe persons who directly participate in hostilities.80 Combatants enjoy significant protections upon capture and may neither be tried for their participation in hostilities, nor for acts that do not violate IHL (concept of combatant immunity). The law of NIAC, however, lacks a distinct category of combatants.81 Relevant treaties refer to participating fighters as ‘armed forces’ or ‘armed groups’.82 For the purpose of this analysis, I employ the term ‘fighter’ to describe both combatant members of regular armed forces, and members of armed groups who fight against the government or against each other.83 These differences should be kept in mind throughout the following legal analysis. But, similar to the law of IAC, the law of NIAC still makes a fundamental legal distinction between fighters and civilians and between military objectives and civilian objects.84

78 79 80 81

82 83 84

Cf. Sassòli/Bouvier/Quintin, pp. 324-325. For details, see Fleck, paras. 1213-1215. Art. 3 Hague Convention IV; art. 43 (2) API. The underlying idea for this inferior status is that states that face domestic insurgencies or threats from armed groups have an obvious interest in prosecuting and sentencing opponents for acts that may constitute murder or destruction, and want to avoid the chaos caused by unaccountable groups that claim a right to lawful use of force. Members of unaccountable groups do not benefit from such extensive protection: they participate in hostilities without combatant status, and may be prosecuted under national criminal law for their belligerent actions (Fleck, para. 1202 [3]; Gasser/Melzer, p. 87). See common art. 3 GCs; APII. For details see Rule 3 of the ICRC Customary Study. See also Fleck, para. 1203 (2). Fleck, para. 1202 (4). For a definition of the term ‘military objectives’, see art. 52 (2) API; Rule 8 ICRC Customary Study. The law of NIAC does not explicitly define the term ‘military objectives’, but follows a logic similar to the law of IAC (see, particularly, art. 15 APII and art. 56 [1] API; Gasser/Melzer, p. 96).

II.

Prohibition of Deliberate Starvation

In the last chapter, I examined the conditions under which IHL provisions apply. In this Chapter II, I elaborate the specific provisions that IHL offers against deliberate starvation in armed conflicts. IHL does not mention the right to food, as such, but many of its provisions ensure that individuals are not denied access to food during conflicts.1 As distinguished from HRL, IHL establishes three specifically formulated provisions that apply to deliberate starvation of the population. The first is a prohibition against starving civilians as a method of waging war.2 This prohibition is further refined by two more provisions that prohibit attacks against objects indispensable to the survival of the civilian population,3 and protect access to humanitarian relief for civilians in need.4 In Section 1, I introduce the historical background and scope of the general prohibition against starving civilians as a method of warfare (1). In the following sections, I examine two scenarios in which states might deliberately starve their own population in an armed conflict: destruction of indispensable objects (2); and, cutting a population off from its food supplies (3).

1

Prohibition of Starvation of Civilians as a Method of Warfare

The prohibition against waging war by starving civilians is a substantial principle of IHL. It was introduced in 1977 by art. 54 (1) API and art. 14 APII.5 In Paragraph 1.1, I trace the historical development of this prohibition, ask if starving civilians was permitted before 1977, and describe the extent to which this innovative principle has become customary law since its adoption in 1977. The APs have so far not been ratified by all states, in contrast to the universally accepted GCs of 1949, and so this historical analysis is important. In Paragraph 1.2, I ask if the prohibition of starvation protects only civilians, and, in Paragraph 1.3, if, e contrario, fighters may legally be starved. Then I briefly outline other provisions of IHL that may be relevant to starvation (1.4). 1 2 3 4 5

See the Report by the Special Rapporteur on the Right to Food, Jean Ziegler, E/ CN.4/2002/58, 10 January 2002, para. 74. Art. 54 (1) API and art. 14, first sentence APII. Art. 54 (2) API and art. 14, second sentence APII. Art. 23 GCIV, arts. 70-71 API and art. 18 APII. Cf. Bothe/Partsch/Solf, p. 336; Kaufmann, Hunger als Rechtsproblem, pp. 195-196.

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1.1

Historical Development and Customary Status of the Prohibition of Deliberate Starvation of Civilians The Legal Situation before the Additional Protocols Since ancient times, starvation has been an established practice of warfare.6 Art. 17 of the 1863 Lieber Code made clear that ‘war is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.’7 In 1907, this practice was slightly limited by art. 23 (g) of the ‘Regulations concerning the Laws and Customs of War on Land’8 (‘Hague Regulations’), which ruled that destruction or seizure of the enemy’s property had to be justified by the imperative demands of the necessities of war. In addition, there already existed rules prohibiting the deliberate targeting of civilians.9 The GCIV did not substantially enhance legal protections against starvation.10 Though it imposed extensive obligations on the occupying power,11 it introduced only the free passage of food to civilians in unoccupied territory (art. 23 GCIV), and ameliorated agreements to evacuate the wounded, the sick, infirm and aged persons, children and maternity cases during sieges (art. 17 GCIV).12 The GCIV was never intended to protect civilians during hostilities, but applies instead to their treatment when they are not caught up in active hostilities.13 6

7

8

9 10 11 12 13

Rosenblad, Starvation as a Method, p. 266. In 334-332 B.C., for instance, Alexander the Great employed this strategy in his war against the King of Persia, Darius III (Rosenblad, Starvation as a Method, p. 255). A detailed analysis of the historical development of IHL, as it relates to starvation, is provided in Allen Ch., pp. 32-40. The Lieber Code contains ‘Instructions for the Government of Armies of the United States in the Field’ (24 April 1863, General Order No. 100). It was signed by President Abraham Lincoln for the Union Forces of the USA during the American Civil War, and was named after the German-American jurist and political philosopher Francis Lieber. The Lieber Code’s coverage of the starvation issue is examined in detail in Allen Ch., pp. 33-35. Hague Regulations concerning the Laws and Customs of War on Land (annexed to the Hague Convention IV, which was adopted on 18 October 1907, and entered into force on 26 January 1910). Art. 25 Hague Regulations. Cf. Bothe/Partsch/Solf, pp. 336-337. See art. 53 GCIV, which has a military necessity derogation to the general prohibition against destroying enemy property. For details, see Bothe/Partsch/Solf, p. 337. Arts. 55, 59-61 GCIV. These obligations are not relevant to this analysis. Allen Ch., p. 39; Bothe/Partsch/Solf, p. 337. While the GCs focus only on protecting individuals who are not, or no longer participating in hostilities during armed conflict, the ‘Hague Law’ (and later the APs) regulate the conduct of hostilities. Both the Hague Law and the APs delineate the rights of

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British Foreign Secretary Stewart acknowledged the broad use of starvation in warfare when he gave a statement in the House of Commons in 1969: ‘We must accept that, in the whole history of warfare, any nation which has been in a position to starve its enemy out has done so.’14 Before the APs of 1977 only the legality of starving combatants was clear, which I outline below.15 Whether or not states could starve civilians as a military strategy to bring about capitulation of the enemy was a controversial question, and answers were buried in the heap of variously interpreted principles of military necessity, proportionality and distinction.16 It has been (and continues to be) an established rule of customary international law to limit war to the means and methods necessary to conquer the enemy, as long as they do not inflict unnecessary suffering.17 Thus the effectiveness of starving the civilian population had to be taken into account: Would it cause the government of the starved population to capitulate? In countries where many people regularly starve, even in peace-time, starvation is unlikely to be an effective means of warfare.18 Rosenblad rightly criticised this flexible approach to starvation tactics, because it suggested that starving the civilian population could always be justified if it eventually resulted in the surrender of that state. Analysing the use of starvation in previous wars, Rosenblad admits that this blunt strategy was indeed militarily effective in reducing the fighting will of the population and in subsequently contributing to bringing about a general surrender.19

14 15 16 17

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the fighters, set clear restrictions on their behaviour and prohibit certain weapons and inhumane practices during war (Kolb/Hyde, pp. 226-227; Kaufmann, Hunger als Rechtsproblem, p. 218). Stewart M., p. 953. See the analysis of starvation of fighters on pp. 191ff. Allen Ch., p. 39; Rosenblad, Starvation as a Method, p. 254; Rosenblad, International Humanitarian Law, p. 105. See Rule 70 ICRC Customary Study; arts. 14-16 Lieber Code; art. 23 (e) of both the 1899 and 1907 Hague Regulations (art. 22 of the 1907 Hague Regulation noted that ‘[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.’). Mudge, pp. 243-244; Kaufmann, Hunger als Rechtsproblem, pp. 196-197. Mudge argued that ‘once there is capitulation, the principle of military necessity may justify the prior civilian starvation’ (ibid., p. 244). A detailed analysis is provided in Provost, pp. 617-622. Rosenblad, Starvation as a Method, pp. 256-257; id., International Humanitarian Law, pp. 104-105.

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New Area of the 1977 Additional Protocols The IHL of 1949 and growing public outrage over war excesses in the postWorld War II period paved the way to ameliorate the protection of the civilian population in the APs of 1977.20 The explicit prohibition against starving civilians as a method of warfare in the APs can therefore be seen as a great achievement. It condemns indiscriminate or particularly cruel weapons and methods of total warfare. The ICRC Commentary aptly points out that this is part of a wider strategy: […] [I]t is not sufficient to condemn specific indiscriminate or particularly cruel weapons, since it is possible to use weapons or means that are legitimate in themselves, or to provoke the release of natural phenomena, in a way equally dangerous for the population.21 Art. 54 (1) API now reads: ‘Starvation of civilians as a method of warfare is prohibited’.22 The term ‘starvation’ means, in both APs, the action of starving or subjecting to famine, i.e., to cause to perish of hunger, to deprive of or keep scantily supplied with food.23 Starvation as a method of warfare is prohibited, as such, and not only when its effect becomes visible in victims among the civil population.24 This clear-cut ban shapes the contours of already-existing principles of military necessity and distinction.25 As regards the law applicable to NIAC, however, the prohibition of starvation (art. 14 APII)is a new rule: Before, only basic humanitarian safeguards were provided by common art. 3 GCs; these were interpreted, inter alia, to protect civilians from becoming military targets and from becoming the object of deliberate attacks (para. 1 [a]).26 The concrete protection of objects indispensable to civilian survival may not be 20

21 22

23 24 25 26

‘The wind of change’ was evident in the report of the UN Secretary General of 18 September 1970 (UN Doc. A/8052, p. 18). For details, see Rosenblad, Starvation as a Method, pp. 258-259; Allen Ch., p. 40. Sandoz/Swinarski/Zimmermann, para. 2087. Art. 54 (1) API. Art. 14, first sentence APII reads similarly: ‘Starvation of civilians as a method of combat is prohibited’ [emphasis added]. The ICRC Commentary explains that using different terminology (‘combat’ instead of ‘warfare’) has no legal consequences, and was at the time of the adoption considered the appropriate term for NIAC. For details, see Sandoz/Swinarski/Zimmermann, paras. 2089 and 4799. Sandoz/Swinarski/Zimmermann, paras. 2089 and 4791. Kaufmann, Hunger als Rechtsproblem, p. 197; Provost, pp. 606-607. Rosenblad, International Humanitarian Law, p. 115. Cassese, The Geneva Protocols of 1977, p. 107.

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derived from this ‘convention in miniature’,27 but there is no doubt that denying food runs contrary to the demand for humane treatment.28 Art. 14 APII (at that time art. 27 of the draft) was scheduled for deletion in the plenary meeting of the Diplomatic Conference, when the representative of the Holy See made an eloquent intervention in support of its retention. He argued that protecting the civilian population was the main goal of the APs and that deleting art. 14 would deprive APII of any real humanitarian substance, since civilians are the chief victims of modern conflict.29 After that intervention, the article was adopted by consensus.30 However, the abstract prohibition of civilian starvation is a general principle and only becomes fully operative when accompanied by concrete regulations.31 Corresponding specific rules are therefore important. I examine these specific regulations later and apply them to the two scenarios of destruction of food supplies (Section 2) and food blockade (Section 3). An examination of these rules reveals that the prohibition of starvation in IACs stated in art. 54 API is not as unambiguous as its wording promises: Its application is weakened by the confusion and uncertainty about its exact content.32 The protection provided by art. 14 APII for NIACs is less ambiguous.33 Notably, art. 14 APII does not contain a derogation, like art. 54 API does. When art. 14 APII was drafted, the exception in case of imperative military necessity was pointedly not adopted.34 Nevertheless, my following examination will show that the blanket statement of art. 14 APII is also diluted.

27

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29 30 31 32

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Such a wide interpretation seems to contradict the position of the states at that time. See Pictet, pp. 34, 38-40. Cf. also Mudge, p. 254; Kaufmann, Hunger als Rechtsproblem, p. 192; Sandoz/Swinarski/Zimmermann, para. 4794 (nevertheless considering the prohibition of starvation as a specific application of common art. 3 GC). Pejic classifies the prohibition against starving civilians as a method of warfare, and the destruction of objects indispensable to civilian survival as a specific expression of the principle of humane treatment (Pejic, p. 1106). CDDH/SR. 52, paras. 81-82. Ibid., para. 90. For details, see Bothe/Partsch/Solf, p. 681. Sandoz/Swinarski/Zimmermann, para. 2091. Cassese has already noted this ambiguity when he analysed the pertinent content of customary law in 1984 (Cassese, The Geneva Protocols of 1977, p. 90). Allen explained that API’s treatment of starvation in warfare reflects ‘the complexities of the issues and the deference that must be accorded to the harsh realities of warfare.’ (Allen Ch., p. 68). Cf. also Marcus, p. 267. Marcus, p. 268. Sandoz/Swinarski/Zimmermann, para. 4795.

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In wartime, food supplies are likely to be scarce and the civilian population suffers accordingly. As the terms suggest, incidental starvation of the population as a result of hostilities does not violate the prohibition of starvation as a method of warfare.35 The military advantages gained by this kind of an incidental famine are not prohibited, as long as the effect of the famine is not deliberately amplified.36 But if accidental starvation occurs, humanitarian assistance should be allowed and facilitated.37 The prohibition only applies to starvation intentionally caused by a belligerent, as the result of a wilful tactic or policy aiming at depriving the civilian population of sufficient foodstuffs. The ultimate aim of this method does not, however, have to be the killing of civilians through starvation.38 The 1977 provisions of art. 54 API and art. 14 APII generally prohibit deliberate starvation of civilians, but the APs are not universally accepted. Can states that have not yet ratified the APs still starve civilians? Before the APs were adopted, the principles of military necessity, proportionality, and distinction were generally applied to assess the legality of civilian starvation. Are the non-ratifying states only bound by these basic principles, or has the prohibition on starvation of civilians as a method of warfare reached customary status and is thus binding on all states, whether they have ratified them or not? The relevant customary IHL opposing deliberate starvation of civilians is assessed in the next chapter. Customary International Law The explicit prohibition of starvation of civilians as a method of warfare was considered new at the time of the adoption of the APs.39 Since then, this prohibition has hardened into a rule of customary international law in both IACs and NIACs.40 The prohibition of deliberate starvation of civilians is today explained in most national military manuals and national legislation for IAC

35 36 37 38 39 40

Cf. San Remo NIAC Manual, Rule 2.3.10 (3), p. 46; Bothe/Partsch/Solf, pp. 339; Kaufmann, Hunger als Rechtsproblem, p. 198. See Provost, p. 603. This is explained in depth on pp. 235ff. In addition, arts. 51 (5) (b) and 57 API and Rule 14 ICRC Customary Study must be taken into account. Provost, p. 603. Bothe/Partsch/Solf, p. 279. See, inter alia: Rule 53 ICRC Customary Study; San Remo NIAC Manual, Rule 2.3.10, p. 45; Cassese, The Geneva Protocols of 1977, p. 92; Provost, pp. 628-634 (in detail, as regards IAC); Pejic, p. 1106; Allen Ch., pp. 79-85; Marcus, pp. 269-270.

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and NIAC.41 The ICRC Customary Study shows that contrary practice has been generally condemned or has been denied by the accused party.42 The prohibition against starving civilians mirrors consensus on the priorities of armed conflict, and the focus on a population’s basic survival needs: The prohibition reflects fundamental principles of customary IHL, such as the principles of humanity, military necessity, distinction and proportionality.43 Provost claims that the fundamental prohibition embodied in art. 54 (1) API and art. 14 APII is direct, and qualifies as a basis of a general rule of law.44 The consequences of starvation tactics are generally indiscriminate, and indiscriminate warfare is prohibited.45 State practice has established the prohibition of indiscriminate warfare as a rule of customary international law that applies in both IACs and NIACs and is binding upon all states.46 Thus, the general prohibition of civilian starvation as a method of warfare binds all states, including those that have not ratified API and APII. The prohibitions of genocide and of crimes against humanity are jus cogens norms and protect against the most atrocious cases of deliberate starvation in times of peace and of armed conflict.47 1.2 Starvation of Civilians In the last section, I introduced the prohibitions of starvation in IHL. In this section, I examine the focus of the provisions that oppose starvation, which apparently rests on the protection of civilians. Then I outline the different scope of general protections for civilians that the GCIV and the APs provide. 41

42 43 44 45

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47

See the ICRC Practice Relating to Rule 53, ICRC Customary Study, paras. III-IV; San Remo NIAC Manual, para, 2.3.10, p. 45. See also 2004 British Manual of the Law of Armed Conflict, paras. 15.19 and 5.27. Rule 53 ICRC Customary Study. State practice reacting on violations of this rule is also provided by Provost, pp. 632-634. See Rules 1 and 14, ICRC Customary Study. For details, see Allen Ch., pp. 79-85; Provost, p. 629; also Yihdego, p. 43. See Provost, p. 628. Art. 54 (2) and (3) API are more ambiguous. Art. 51 (4) API and art. 13 (2) APII. See further arts. 35, 48, 51 (2) and 52 (2) API; art. 25 Hague Regulations. A violation of this prohibition may constitute a war crime (art. 8 [2] [b] [i] and [e] [i] Rome Statute). Rosenblad thus classifies starvation, per se, as contradicting the principle of distinction (see Rosenblad, International Humanitarian Law, p. 116). See ICRC Customary Study, Rules 11-12. Cf. further 2004 British Manual of the Law of Armed Conflict, para. 5.23; the Report of the UN Secretary-General pursuant to para. 5 of the SC Res. 837 (1993), UN Doc. S/26351, 24 August 1993, Annex, para. 12; UN GA Res. 2675 (XXV, of 9 December 1970), para. 4. For details see Gasser/Melzer, p. 193. Meron, International Criminalization, p. 558.

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I then show how these scopes shape the focus of my book on the starvation of a state’s own population. Focus on Civilians When analysing the IHL prohibitions of starvation, the eye is caught by their focus on civilians. Unlike HRL that generally protects all individuals, it is striking that these safeguarding provisions only refer to ‘civilians’ or the ‘civil population’. Starvation of civilians as a method of warfare and attacks against objects indispensable to the survival of the civilian population are explicitly prohibited,48 and the provision of humanitarian relief to civilians regulated.49 Defining the term ‘civilian’ is thus a necessary step. For the purpose of IHL, a ‘civilian’ is a person who is not a member of the armed forces (art. 50 [1] API),50 and ‘the civil population’ comprises all persons who are civilians (art. 50 [2] API).51 These provisions correspond to the central principle of IHL: Only fighters and other military objectives52 may be targeted in hostile actions of the adverse party.53 Attacks must not be directed against civilians or civilian objects.54 The principle of distinction also implies that civilians lose their protection when and for such time as they take direct part in hostilities.55 48 49 50 51

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Art. 54 (1) and (2) API, and art. 14 APII. Art. 23 GCIV, arts. 70-71 API, and art. 18 APII. Affirmed in ICTY, The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeals Chamber, Judgment of 29 July 2004, para. 751. The presence of individual combatants within the civilian population does not deprive that population of its civilian character (art. 50 [3] API). See further on that issue, ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Decision of 2 September 1998, para. 582; Bothe/Partsch/Solf, p. 296. The term ‘military objectives’ comprises fighters and all objects ‘which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’ (art. 52 API and Rule 8 ICRC Customary Study). For details, see Bothe/Partsch/Solf, pp. 284-285. Gasser/Dörmann, para. 501 (1). The parties to the conflict must, at all times, distinguish between civilians and combatants, and between civilian objects and military objectives (Rules 1 and 7 ICRC Customary Study). Cf. regarding IACs arts. 48, 51 (2) and 52 (2) API, and art. 8 (2) (b) (i) Rome Statute; and regarding NIACs art. 13 (2) APII, and art. 8 (2) (e) (i) Rome Statute, and broadly interpreted also common art. 3 GCs. Art. 51 (3) API; art. 13 (3) APII. For further details, see Melzer, Interpretive Guidance; Rule 6 ICRC Customary Study; and critically Henckaerts, The ICRC Study on Customary International Humanitarian Law, p. 163.

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In IACs it is usually clear who belongs to the opposing armed forces. However, in NIACs it is not always easy to determine who is committing acts of violence and who is not. In practice, armed opposition groups are often poorly organised and equipped, and conduct their operations with some degree of civilian support.56 APII does not contain provisions comparable to art. 43 API, which clearly defines armed forces and combatants. In art. 1 APII, the category of civilians in NIACs is paraphrased as all persons who are not members of organisations that meet the qualification of art. 1 APII. In concreto, civilians are all persons who are (1) not members of the armed forces of the contracting party, or of dissident armed forces, and (2) also not members of any organised armed groups that meet the conditions of art. 1 (1) APII (i.e. are under responsible command and exercise control over territory in order to carry out sustained and concerted military operations and implement APII).57 The difficulties in determining the category of civilians are problematic, since the protections in IHL depend on this distinct classification. To simplify classification, fighters must distinguish themselves from the civilian population by wearing a uniform or other distinctive sign visible from a distance, and must carry their arms openly.58 But the distinction is often blurred when civilians directly participate in hostilities. Difffijiculties Arising from the Focus on a State’s Own Population Only civilians benefit from the distinct provisions against deliberate starvation. The general scope of protection for civilians that the GCIV and the APs provide is also limited in other ways: Many rules of IHL concern only the way parties to the conflict treat the nationals of its adversary, and do not regulate a state’s treatment of its own citizens.59 It is useful to outline the relevant provisions and examine their possible impact on treatment of a state’s own population. The GCIV does not grant much protection against the acts of a civilian’s own national state, and instead generally focuses on protecting enemy civilians.60 The state parties intended to preserve the recognised principle of international law of non-interfere in a state’s relations with its own nationals.61 Art. 4 GCIV makes clear that the only persons who enjoy protection are those who do not have the nationality of the belligerent state in whose hands they 56 57 58 59 60 61

Fleck, para. 1202 (4); Gasser/Dörmann, para. 501 (2). Bothe/Partsch/Solf, p. 672. Gasser/Dörmann, para. 501 (3). Cf. also Kellenberger, pp. 146-147; Slim, pp. 260-261. O’Connell, para. 103 (2). Cf. Kolb/Hyde, pp. 222-223; van Dongen, p. 130. Pictet, p. 46.

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are (including de jure or de facto stateless).62 Common art. 3 GCs63 and Part II of the GCIV are the only exceptions to this general rule and apply to all civilians on the territories of the belligerents, whatever their nationality.64 This limited protection is irrelevant to the question at hand, since the provisions against starvation of civilians belong to Part II of the GCIV, and thus also cover the belligerent’s own nationals. Part II of the GCIV applies to any civilian who resides in a territory that belongs to or is occupied by a party to the conflict.65 Some governments opposed regulating the relations between a state and its own nationals. These governments argued that it was inconsistent to impose obligations on their treatment of their own nationals in an international treaty. But because protecting the human rights of the individual had grown increasingly important, the Diplomatic Conference agreed to include these provisions of Part II, even though they went beyond regulating the relations between a given state and civilians of the enemy state.66 The ICTY also relativised the strict concept of protected persons pursuant to art. 4 GCIV, and held that the crucial factor in protected status might extend beyond enemy nationality and also include allegiance to the enemy.67 The protections API provides to the civilian population are wider than the general scope of the GCIV (apart from Part II of the GCIV) and are pointedly not limited to enemy civilians. The API intended to protect all persons located on the territory of a party to the conflict, who do not take part in the hostilities.68 Art. 50 API’s categorisation of protected civilians does not refer to nationality. However, API restricts the definition of ‘attack’, which might reduce the scope of protection of the civilian population against star62

63 64 65 66 67 68

The general principle underlying the GCs is that every person in enemy hands must have some status under international law and is covered by the law. This illustrates the intended focus of protection of these Conventions (Pictet, p. 51). Common art. 3 GCs protects everyone taking no active part in the hostilities whatever his nationality (Pictet, p. 40). Art. 13 GCIV. Cf. Pictet, p. 119; Kolb/Hyde, pp. 226-227. Art. 13 GCIV. Diplomatic Conference, Report of the Third Committee, Final Record, Vol. 2, p. 816. See further on that issue, van Dongen, pp. 130-131. See ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999, paras. 165-166. See Projects de Protocoles additionnels aux Conventions de Genève du 12 août 1949, Commentaires, ICRC, Geneva Octobre 1973, p. 57 (about art. 45 of the proposed Draft API submitted by the ICRC); Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (CDDH), Geneva, 1974-1977 (hereinafter O.R.), XIV, p. 14, CDDH/III/SR.2, para. 8.

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vation.69 Despite the wide definition of the civilian population, the definition of ‘attack’ given in art. 49 (1) API is limited to acts of violence that are directed ‘against the adversary’.70 Art. 49 (2) API explicitly states that ‘[t]he provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.’ I will analyse the implication of this provisions on the protection of civilians against starvation by the own government in depth in the specific chapters. APII also protects civilians without regard to their nationality.71 Art. 13 (1) APII gives all civilians, without distinction, ‘general protection against the dangers arising from military operations’.72 The term ‘general protection’ contrasts with the ‘special protection’ of certain categories of individuals in the civilian population. It implies an obligation to abstain from direct attacks against civilians, and to avoid incidental casualties among civilians.73 ‘Military operations’, on the other hand, refers to movements of attack or defence by the armed forces in action.74 Unfortunately, APII does not define the term ‘attack’. The ICRC suggests the terms be used the way they are defined in API, and refers to art. 49 (1) API.75 ‘Attacks’ would then encompass only acts of violence against the adversary, either in offence or defence. 1.3 Starvation of Fighters After the deliberations on the particular protection of civilians, the question rises whether e contrario starvation of fighters is permitted in armed conflicts.76 IHL generally does not protect the life of fighters as such. They are a 69 70 71 72

73 74 75

76

Art. 54 (2) API, for instance, precisely refers to destruction of indispensable objects, inter alia, by attack. Bothe/Partsch/Solf, p. 289; Sandoz/Swinarski/Zimmermann, paras. 1877-1882. Sandoz/Swinarski/Zimmermann, para. 4767. Art. 13 (1) APII. See further Projects de Protocoles additionnels aux Conventions de Genève du 12 août 1949, Commentaires, ICRC, Geneva Octobre 1973, p. 162 (about art. 25 of the proposed Draft APII, submitted by the ICRC). Sandoz/Swinarski/Zimmermann, paras. 4767, 4770-4771. See also Rule 14 ICRC Customary Study. Sandoz/Swinarski/Zimmermann, para. 4769; O.R. XIV, p. 14, CDDH/III/SR.2, para. 8. Sandoz/Swinarski/Zimmermann, para. 4783. Cf. also Bothe/Partsch/Solf, pp. 672-673. This was also the view of the state parties to the APs (see, for example, the understanding of the USA at the time of the signature [printed in Bothe/Partsch/Solf, pp. 722-723]). Within the scope of this section, the term ‘fighter’ is used for both combatants in IAC and fighters in NIAC, since the analysis of starvation of both categories of persons participating in hostilities coincides.

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legitimate military target, if they participate in the hostilities.77 However, the Hague Regulations of 1907 already acknowledge, ‘[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.’78 Necessity and proportionality are long established principles of humanitarian law: A belligerent may apply only the amount and kind of force necessary to defeat the enemy and must not apply unnecessary or wanton force.79 The practice of starving out fighters to force capitulation is generally permissible under IHL as long as it is militarily necessary.80 Art. 23 (g) of the 1907 Hague Regulations implies a right to destroy military stores or government-owned food provisions that may be used by enemy forces.81 For the legitimate purpose of forcing the enemy to surrender as soon as possible, or to retreat from the national territory of an invaded country, starvation may be justified. It is only illegal to cause suffering unnecessary to win the war.82 Art. 54 (3) API concurs, preserving starvation of armed forces as a method of warfare, as long as the only items destroyed are those used solely by military personnel, and not by civilians as well. It is important to balance military necessity against humanity.83 Considering the slow death of starvation, at first sight, its use as a weapon seems particularly cruel and inhumane.84 On closer examination, it may be a softer means of warfare than regular weapons (such as artillery, bullets or bombs). The enemy may surrender before he starves to death, but firearms cause certain death.85 Killing by starvation, however, causes suffering beyond what is 77

78 79

80

81 82 83 84 85

Kellenberger, p. 143. A combatant who is wounded or sick, clearly expresses an intention to surrender, or is in the power of an adverse party, should be recognised as hors de combat and should not be attacked (art. 41 API; common art. 3 GCs; art. 7 APII). Art. 22 Hague Regulations. See the similar art. 35 (1) API. Arts. 14-16 Lieber Code; art. 23 (e) Hague Regulations. See Rule 14 ICRC Customary Study on Proportionality in Attack; and also the US representative during the CDDH classifying the principle of proportionality as a rule that was ‘already established by custom and in practice’ (O.R. Vol. XIV, CDDH/III/SR.21, 17 February 1975, p.  194, para. 91); O’Connell, para. 131 (1). Allen Ch., p. 4; Mudge, pp. 228-268; Rosenblad, Starvation as a Method, pp. 253-255; Kraska, para. 10; Rosenblad, International Humanitarian Law, p. 105 (according to Rosenblad experts are unanimous on this point [p. 253]). Mudge, p. 246. See art. 35 (2) API. Art. 40 API is also relevant. For details, see Rosenblad, International Humanitarian Law, p. 105. See, e.g., preamble of the 1907 Hague Convention IV. A vivid description of these characteristics is provided by Dando, Hunger and Starvation, pp. 273-274. For a contrary opinion, see Thomas, p. 117.

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necessary to successfully defeat the enemy and is not permissible. Starvation of fighters shall hence only be carried out with the goal of forcing capitulation and not with the goal of intentionally starving them to death.86 Nevertheless, an analysis of starving fighters alone is hypothetical. In practice, it is unlikely that hostile fighters will be starved exclusively, without starving the civilian population at the same time. Deliberate destruction of indispensable objects does often not affect only fighters, but also (or to a greater extent) the civilian population. Starvation tactics thus differ from direct military operations in which concrete targets are selected.87 When starvation is used as a method of warfare, it is likely to cause indiscriminate harm, and indiscriminate attacks against civilians are not permitted in IHL. Collective punishment is also prohibited.88 Incidental civilian suffering caused by lawful attacks against military targets may be justified as collateral damage under the general rules of proportionality.89 However, the proportionality test is not suited to a method of warfare that is, by its very nature, unable to distinguish between military and civilian objectives. The specific provisions of art. 54 API and art. 14 APII uphold this principle of distinction and proportionality with regard to the special features of starvation policies.90 The following in-depth analysis (Chapters 2 and 3) is based on these regulations. Before I start with this detailed examination, I will briefly explain other prohibitions that may additionally encourage banning starvation of the civilian population (1.4).

86 87

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89 90

Cf. also Rosenblad, Starvation as a Method, p. 255; Rosenblad, International Humanitarian Law, p. 105. Thomas describes starvation as ‘a long, drawn out tactic, that creates much suffering before its success, if any, can be seen’ (Thomas, p. 117; see further on that issue pp. 116118). Cf. also Rosenblad, International Humanitarian Law, p. 116. See art. 50 Hague Regulations, art. 87 (3) GCIII, art. 33 (1) GCIV, art. 75 (2) (d) API and art. 4 (2) (b) APII. For details, see Sandoz/Swinarski/Zimmermann, paras. 4535-4536. The prohibition of collective punishment constitutes a rule of customary international law (see ICRC Customary Study, Rule 103) and may constitute a war crime (art. 4 [b] of the Statute of the ICTR and art. 3 [b] of the Statute of the Special Court for Sierra Leone). See the relevant conditions in arts. 51 (5) (b) and 57 API and Rules 14-15 ICRC Customary Study. See also Report of the UN Darfur Commission, p. 48. A detailed analysis of the principle of distinction and proportionality with regard to civilian starvation is provided by Provost, pp. 618-622; and Thomas, pp. 110-113.

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1.4 Further Implicit Provisions against Starvation In addition to the specific provisions of IHL that govern starvation tactics, the international community also limits or bans other methods of warfare. These bans also protect the population against starvation. In armed conflicts, belligerent parties often deliberately use chemical, biological, and other indiscriminate weapons to inflict hunger on adversaries.91 Following the general rule of prohibition of unnecessary suffering, the use of weapons deemed to cause unnecessary suffering or affect fighters and civilians indiscriminately is prohibited – without regard to their actual effect of starvation. In addition, art. 35 (3) API explicitly prohibits the employment of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment. There is a duty, in warfare, to protect the natural environment against this kind of damage.92 Further conventions specifically regulate the use of chemical, biological, and other indiscriminate weapons:93 The 1997 Ottawa Convention94 and the 1980 Convention on Certain Conventional Weapons (CCW),95 with its five Protocols, prohibit or restrict, inter alia, the use of some indiscriminate weap91 92

93

94

95

For details on these ‘new’ weapons, see Daoust, pp. 345ff.; Boothby. A short overview on the relevant regulations provides Kaufmann, Hunger als Rechtsproblem, pp. 218-229. Art. 55 API; see, for the relevant criminal responsibility, art. 8 (2) (b) (iv) Rome Statute. For details, see Gasser/Melzer, p. 170; ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, 1994; UNEP, Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law, 2009; Gasser, pp. 637ff. See also the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, 10 December 1976. An overview of the specific Conventions is provided by Gasser/Melzer, pp. 190-201; Kaufmann, Hunger als Rechtsproblem, pp. 220-229; and Rosenblad, International Humanitarian Law, pp. 108, 120-121. The full title of the Ottawa Convention is, ‘Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction’. The Convention was adopted on 18 September 1997 (at the Oslo Diplomatic Conference on a Total Global Ban on Anti-Personnel Mines), and entered into force on 1 March 1999. The full title of the CCW is ‘Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects’. The original CCW, with three annexed Protocols, was adopted on 10 October 1980 in Geneva, and entered into force in December 1983. The CCW was amended on 21 December 2001, and further Protocols were elaborated. The Protocols have not been ratified by as many states as the Convention (as of September

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ons in both IACs and NIACs.96 The use of chemical weapons was banned in IACs by the 1925 Geneva Gas Protocol,97 and is comprehensively prohibited in both IACs and NIACs by the 1993 Chemical Weapons Convention.98 The use of biological weapons is also prohibited by the Geneva Gas Protocol and by the 1972 Biological Weapons Convention99 in IACs. Prohibitions on the use of both chemical and biological weapons are established rules of customary international law, applicable in both kinds of armed conflicts.100 In addition, starvation may be caused by burning of fields or forests. The use of incendiary weapons was restricted in 1980 by Protocol III of CCW.101 Cluster bombs and land mines may render pastures and fields useless for many years after conflicts have ended. The use of anti-personnel mines was limited in IACs and NIACs by the 1997 Ottawa Convention102 and Protocol II of CCW.103 Cluster bombs are, however, not covered by the Ottawa Convention. Since 2008, the Convention on Cluster Munitions absolutely prohibits

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2013: 117 state parties (for details on the state parties and signatories, consult www. unog.ch/ccw and https://treaties.un.org/). The CCW originally only applied in IACs (art. 1 of the 1980 CCW). At the Second Review Conference (Geneva, 11-21 December 2001), the state parties agreed to amend the convention so that it also applies to situations of NIAC. The amendment to art. 1 CCW entered into force on 18 May 2004. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, adopted on 17 June 1925, entered into force on 8 February 1928. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, adopted on 13 January 1993, entered into force on 29 April 1997. See ibid., art. I. See also art. 8 (2) (b) (xviii) Rome Statute. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature on 10 April 1972, entered into force on 26 March 1975. See ibid., preamble and art. 1. See also Hague Declaration concerning asphyxiating gases of 29 July 1899; Treaty of Versailles of 28 June 1919 (art. 171); and Treaty of Washington of 6 February 1922 (art. 5). Rules 73-74 ICRC Customary Study. Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons (annexed to the CCW), adopted on 10 October 1980, entered into force on 2 December 1983. For details, see Maslen. Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices Weapons (annexed to the CCW of 1980) was originally adopted on 10 October 1980, amended on 3 May 1996 and entered into force on 3 December 1998. See also arts. 80-92 San Remo Naval Warfare Manual; and Protocol I: Non-Detectable Fragments (annexed to the CCW), adopted on 10 October 1980, and entered into force on 2 December 1983.

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the use of cluster munitions in IACs and NIACs.104 This convention also requires each state party to clear cluster munitions remnants (art. 4). Unexploded cluster bombs are a serious humanitarian problem; fear of death and injuries at the least touch impedes access to food both during conflicts and in the post-conflict phase.105 Explosive remnants of war are also covered by Protocol V of CCW.106 The protection of works and installations that contain dangerous forces, namely dams, dykes and nuclear electrical generating stations, is also relevant (art. 56 API, art. 15 APII). Starvation is correlated with the destruction of works or installations that contain dangerous forces. The Diplomatic Conference recognised the vital importance of dykes in agricultural countries: The representative of the Democratic Republic of Vietnam stressed that ‘aggressors always tended to attack them in order to starve the civilian population’.107 He referred to the war in Vietnam 1969-1975, in which a vast number of dykes were systematically destroyed with explosives and penetration bombs. Large areas were flooded, and the summer and autumn rice harvest was destroyed, depriving the Vietnamese population of a fundamental food source and causing the deaths of millions of inhabitants by drowning or starvation.108 In the next sections, I discuss the concrete scenario in which objects indispensable to the civilian population are destroyed (2), and the scenario in which civilians are starved by food blockade (3).

2

Destruction of Objects Indispensable to the Survival of the Civilian Population

Destroying or devastating objects indispensable to the survival of the civilian population, such as foodstuffs, food-producing areas, crops, livestock, drinking water installation and supplies, is the usual tactic when starvation is wielded as a weapon. These include sporadic acts of destruction, and also the scorched earth strategy. The legal regime that governs destruction is com104 105 106 107 108

Art. 1 of the Convention on Cluster Munitions, adopted on 30 May 2008, entered into force on 1 August 2010. Critically, Gasser/Melzer, p. 194. Cf. Gasser/Melzer, p. 193. Protocol V on Explosive Remnants of War (annexed to the CCW of 1980), adopted on 28 November 2003 and entered into force on 12 November 2006. Deliberations by the representative of the Democratic Republic of Viet-Nam, Diplomatic Conference, CDDH, O.R. Vol. XIV, CDDH/III/SR.19, 13 February 1975, p. 161, para. 2. Ibid. See also the Indonesian representative emphasising the close link of art. 49 with art. 48 Draft API, i.e. today’s arts. 54 and 56 API (ibid. p. 166, para. 18).

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plex. For clarity, I have analysed the different cases of application separately: First, I discuss offensive destructive tactics, which are aggressive acts of destruction against the enemy in offensive operations (2.1). Then I address defensive scorched earth tactics, in which a state destroys its own territory to defend against invasion (2.2). This analysis is based on the specific provisions in art. 54 API and art. 14 APII that govern destruction of objects indispensable to the survival of the civilian population. Since other provisions may also be applicable and may complement these particular protections against starvation, I also outline the relevant ancillary provisions before discussing art. 54 API and art. 14 APII in more detail. Large-scale destruction that is carried out through use of chemical, biological and other indiscriminate weapons is covered by both the specific conventions that regulate these weapons,109 as well as by art. 54 API and art. 14 APII.110 Starvation may also be evoked by acts or threats of violence that indirectly threaten food security. For example, reducing the number of farmers through attacks or terror may cause acute food shortages as production falls.111 Food deficits can also be caused by deliberately spreading terror among civilians so that they are afraid to get food. In 2012, the Syrian government forces may have dropped bombs and fired artillery at bakeries in Aleppo province, and thus killed numerous civilians who were waiting for bread.112 Such tactics indirectly render food-producing or distribution areas useless, and are therefore covered by art. 54 (2) API and art. 14 APII. But beyond the specific starvation provisions, any acts or threats of violence that are carried out with the primary intent of spreading terror among the civilian population also fall within the ambit of art. 51 (2) API and art. 13 (2) APII.113 109 110

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I have just presented the conventions that regulate chemical, biological and other indiscriminate weapons before on pp. 194ff. The verbs described in art. 14, second sentence APII and art. 54 (2) API are used to cover all possibilities and also include, for instance, pollution of water supplies by chemical agents (Sandoz/Swinarski/Zimmermann, paras. 2101 and 4801). Cf. Armed Conflict and Hunger – How Conflict Causes Hunger, Hunger Notes (the online publication of WHES), available at www.worldhunger.org/articles/fall2000/messer3.htm. Human Rights Watch, ‘Syria: Government Attacking Bread Lines’, 30 August 2012, available online at www.hrw.org/print/news/2012/08/30/syria-government-attackingbread-lines; ‘Syriens Armee beschiesst Warteschlangen vor Bäckerei’, NZZ online of 30 August 2012, available online at www.nzz.ch/aktuell/international/zivilisten-imvisier-syriens-armee-beschiesst-baeckereien-in-aleppo-1.17545078. See also the corresponding rule of customary IHL (ICRC Customary Study, Rule 2).

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Starvation often accompanies the forced movement of civilians. Deprivation of a population of food gives that population no option but to flee. Art. 14 APII and art. 54 (2) and (3) (b) API are designed to prevent the population from being forced to move away. Forced movement of civilians is also prohibited by art. 17 APII.114 In both IAC and NIAC, unlawful displacement of civilians may, under certain circumstances, also constitute a war crime or a crime against humanity under the Rome Statute.115 Pillage is prohibited and may constitute a war crime in both IACs and NIACs.116 2.1 Offfensive Destructive Tactics Warring parties may gain an advantage by destroying the enemy’s crops and food supplies. To conform to the scope of this analysis, I examine only a state’s destructive tactics carried out on its own national territory. Deliberate destruction of objects indispensable to the survival of the civilian population in hostile areas of a state’s territory is frequent in conflicts, particularly in NIACs. In the classic paradigm of a NIAC, destruction is part of a counter-insurgency campaign of governments against rebel areas. The on-going armed conflict in the West Sudanese Darfur region, where extensive destruction has been reportedly applied as a war strategy, illustrates this point. The International Commission of Inquiry on Darfur to the UN SC (‘UN Darfur Commission’) investigated the Darfur conflict and found that the large-scale destruction of villages in three states of Darfur had been deliberately caused by the Janjaweed and government forces.117 The Commission reported: The destruction was targeted at the areas of habitation of African tribes, in particular the Fur, Zaghawa and Massalit. There was no military necessity for the destruction and devastation caused as a joint venture by the Janjaweed and the Government forces. The targets of destruction 114 115

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Sandoz/Swinarski/Zimmermann, para. 4812; and paras. 4847-4868. See art. 8 (2) (b) (viii) and (2) (e) (viii) Rome Statute. See also Pejic, pp. 1100-1101, for discussions of this war crime. The relevant crime against humanity is regulated in art. 7 (1) (d) and (2) (d) Rome Statute (‘Deportation or forcible transfer of population’). See arts. 28 and 47 Hague Regulations; art. 33 (2) GCIV; art. 4 (2) (g) APII; Rule 52, ICRC Customary Study. As regards the relevant war crime see art. 8 (2) (b) (xvi) and (2) (e) (v) Rome Statute. See also the Statutes of the International Criminal Tribunals for the former Yugoslavia (art. 3 [e] ICTY Statute), and for Rwanda (art. 4 [f] ICTR Statute) and of the Special Court for Sierra Leone (art. 3). For details, see Sandoz/Swinarski/Zimmermann, para. 4542. Report of the UN Darfur Commission, p. 83, para. 315.

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during the attacks under discussion were exclusively civilian objects; and objects indispensable to the survival of civilian population were deliberately and wantonly destroyed.118 Racially motivated, systematic attacks against the civilian population displaced a substantial segment of the Darfurian population and created serious food insecurity among IDPs.119 The African HR Commission confirmed that the destruction was the result of a scorched earth campaign that killed many civilians, caused widespread destruction of villages and forests, and poisoned water sources.120 Such destruction can lead to starvation. These offensive destructive tactics clash, a priori, with the general prohibition of starvation in art. 54 (1) API and art. 14, first sentence, APII, but the specific provisions establish a complex set of regulations that must be elaborated in depth. Offensive destructive tactics against a state’s own population are mainly applied in NIACs. Nevertheless, those tactics must first be examined in the context of IACs (a), and only then discussed in the context of NIACs (b). It is important to preserve this order because the rules that govern NIACs are, in part, based on the rules regarding IACs. a) International Armed Conflicts In the context of an IAC, a state may make destructive attacks against its own civilian population, on its own territory, in two different cases. A state may use starvation tactics against the population of a part of its territory that is controlled or occupied by an enemy state (aa). Or, starvation tactics may be employed in a national territory under the state’s own control (bb).

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[Emphasis added] Report of the UN Darfur Commission, p. 83, para. 315. Report of the UN Darfur Commission, 25 January 2005, p. 25, para. 72. The food insecurity in Darfur is described in detail in: Centers for Disease Control and Prevention (CDC) and World Food Programme (WFP), A Joint CDC/WFP Survey ‘Emergency Nutrition Assessment of Crisis Affected Populations: Darfur Region, Sudan’, Atlanta/ Rome: CDC/WFP 2004 (see particularly on p. 3 where the nutritional situation in Darfur is referred to as ‘precarious’); and Böcker, pp. 85-86. Decision of the African HR Commission, Communication No. 296/2005, Centre on Housing Rights and Evictions v. Sudan, adopted during the 45th Ordinary Session (held between 13 and 27 May 2009), paras. 209-211. Cf. also Sudan: Post-Conflict Environmental Assessment, UNEP, 2007, p. 75, available at http://postconflict.unep.ch/publications/UNEP_Sudan.pdf.

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aa) Offfensive Attacks in Territory under Enemy Control When a state starves its own population in a territory that is controlled or occupied by a foreign state, this is still starvation on a state’s own national territory.121 This scenario falls within the scope of this study. I interpret ‘controlled’ in the same fashion as art. 49 (2) API, which refers to ‘de facto control’ rather than ‘de jure control’,122 and describes the effective ability to exercise power to administer and subordinate.123 The meaning is distinct from that of the term ‘occupied’, since ‘controlled’ refers to a factual situation and not a legal concept.124 Starving the population within an area of a state that is controlled or occupied by an enemy state, falls unambiguously within the prohibition of art. 54 (2) API. This is evident in light of art. 49 (2) API: The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.125 The prohibition pursuant to art. 54 (2) API is not comprehensive, so I outline its scope and discuss the established and considerable exceptions. Scope of Art. 54 (2) API

Art. 54 (2) API prohibits attacks, destruction, removal, or rendering useless objects indispensable to the survival of the civilian population of either side in an armed conflict. The list of enumerated protected objects in art. 54 (2) API is only an illustration.126 Attacks against these items are prohibited if they are carried out ‘for the specific purpose of denying them for their sustenance value’. The denial is thus forbidden, if its purpose is to deny these 121

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Even during belligerent occupation, the occupied part of a state still belongs to the territory of the occupied state. It was explicitly held during the Diplomatic Conference that: ‘It goes without saying that the Occupying Power may not treat the occupied territory as if it were its national territory’ (CDDH/407/Rev. 1, p. 463, para. 52; CDDH/III/369, p. 516). For details, see the deliberations above on pp. 165-166. Sandoz/Swinarski/Zimmermann, paras. 1888-1889. ‘De facto control’ implies an effective power to direct and take decisions (Sandoz/Swinarski/Zimmermann, para. 2118). Sandoz/Swinarski/Zimmermann, para. 1888. Ibid. See also CDDH/407/Rev. 1, p. 492. See Sandoz/Swinarski/Zimmermann, para. 2103; Allen Ch., pp. 63-64; Bothe/Partsch/ Solf, p. 340.

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objects because they are indispensable to the survival of the civilian population or to the adverse party.127 It is not necessary that these attacks have any de facto effect on the civilian population’s food supply. Only the specific purpose is relevant: Indispensable objects are absolutely protected against deliberate attacks if the attacks are aimed at their sustenance value.128 Art. 54 (2) API states that the motive of the destruction is irrelevant.129 This notion is confusing as it can be difficult to distinguish between the required purpose and the irrelevant motive in practice. Allen clarifies that the underlying concern of that provision was to ensure that it covered specious excuses a party might use to justify such destruction.130 The prohibition does not cover incidental destruction of indispensable objects that is caused by otherwise lawful military operations, though the belligerent parties are still obliged to take precautions to avoid and minimise such incidental harm and to provide humanitarian relief.131 The general prohibition in art. 54 (2) API is mitigated by para. 3, which sanctions two exceptional cases following the principle of ‘military necessity’. First, destructive actions against an enemy’s objects of sustenance are permitted if those objects are used ‘solely for the members of its armed forces’ (para. 3 [a]);132 destruction of items used by both civilians and military personnel remains prohibited.133 Bothe, Partsch, and Solf explain that the exception generally applies only to supplies already in the hands of the adverse party’s armed forces, because only then could one know that they are intended for exclusive use by the members of enemy armed forces.134 The second derogation is intended for items ‘in direct support of military action’ in a manner unrelated to their sustenance value (para. 3 [b]). That these sup127 128 129 130 131 132

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For details on the considerable difficulty in drafting this para., see Bothe/Partsch/Solf, pp. 339-340; Sandoz/Swinarski/Zimmermann, paras. 2104-2107. Cf. also, Provost, p. 604. See art. 54 (2) API (‘whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive’). Allen Ch., p. 62. Arts. 51 (5) (b) and 57, and arts. 68-71 API. Cf. also Rule 15 ICRC Customary Study; Bothe/ Partsch/Solf, p. 339; Kaufmann, Hunger als Rechtsproblem, p. 198. ‘Objects of sustenance’ are ‘foodstuffs and the agricultural areas producing them, crops, livestock and supplies of drinking water, but not with installations for drinking water or irrigation works’ (Sandoz/Swinarski/Zimmermann, para. 2109). Allen Ch., pp. 64-65. They also point out that even in that case, one should be careful, since objects in the military supply system may still be intended for use by civilians who serve the armed forces (Bothe/Partsch/Solf, pp. 340-341).

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plies can serve to sustain the armed forces is not sufficient to countenance their destruction. Examples of destroying supplies used ‘in direct support of military action’ are ‘bombarding a food-producing area to prevent the enemy from advancing through it, or attacking a food-storage barn which is being used by the enemy for cover or as an arms depot’,135 destroying a water tower used as an observation post, or devastating a cornfield used as cover for the infiltration of an attacking force.136 Allen rightly points out that this provision does not add another exception, since para. 2 only applies if the object is attacked to deny its sustenance value. Para. 3 (b) restates the exception already contained implicitly in para. 2, and serves ‘as a limit on the “military necessity” grounds a belligerent may use to try to avoid the prohibition’.137 In concrete, para. 3 (b) states that not even ‘direct military support’ can justify the destruction of an item, if such destruction is ‘expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement’.138 These attacks are not prohibited because they are intentionally directed at objects for their sustenance value (like para. 2), but because of their predictable effect.139 Finally, art. 54 (4) API repeats the general prohibition against civilian reprisals and applies it specifically to sustenance objects protected by para. 2.140 This is a summary of the basic rules: 1. Supplies of foodstuffs that are used solely for the benefit of the armed forces may be legitimately attacked and destroyed, but supplies that serve both the civilian population and the armed forces, or only the civilian population, may not be attacked. 2. If objects are not used for the subsistence of combatants, but are used in direct support of military action, destruction is only legitimate if it does not

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Sandoz/Swinarski/Zimmermann, para. 2110. Bothe/Partsch/Solf, p. 341. See also the examples used by Dinstein, The Conduct of Hostilities, p. 219. Allen Ch., pp. 65-66. Art. 54 (3) (b) API. For details, see Allen Ch., pp. 65-66 (with an example case on p. 66); Sandoz/Swinarski/Zimmermann, para. 2106. Provost, p. 604. Bothe/Partsch/Solf, p. 342; Allen Ch., p. 66. A reprisal is a breach of the law by one belligerent party in response to a breach of the law by another belligerent party, with the aim of preventing repetitions of the initial breach (Kraska, para. 15). For details about the general problem of reprisals, see Sandoz/Swinarski/Zimmermann, paras. 3423 – 3459. See also art. 33 GCIV.

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deleteriously affect supplies for the civilian population, i.e., that it neither reduces the population to starvation, nor forces it to move away. This provision is still ambiguous. Rosenblad criticises the ambiguous language of art. 54 (2) and (3) API and the confusing interplay between ‘purpose’ and ‘motive’.141 It is difficult to ascertain, in the heat of battle, if the particular objects are used by the enemy ‘as sustenance solely for the members of its armed forces’ or ‘in direct support of military action’ (para. 3). Noting the difficulty, he rightly holds that ‘[s]uch wording invites abuse’.142 Blurred regulations make it difficult to implement the law. Thus, the content of corresponding customary law is also ambiguous and complex. To clarify the situation, I will therefore briefly outline the historical background, and then appraise the customary status of the relevant provisions. Historical Background

Wanton devastation was already considered unlawful under the regime of the ‘Convention (IV) Respecting the Rules of War on Land’143 (‘Hague Convention IV’) of 1907: Art. 23 (g) of its annexed Hague Regulations prohibited the destruction and seizure of enemy property unless such action was an imperative demand of the necessities of war. This prohibition restricted the destruction of civilian food supplies and lowered the risk of starvation.144 But belligerent parties were still allowed to destroy military stores or government-owned food provisions that might be used by enemy forces. Cassese notes that starving an enemy civilian population was still permitted if the means of subsistence served both civilians and combatants.145 Under the Nuremberg Principles146 ‘devastation not justified by military 141

142 143

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Rosenblad, International Humanitarian Law, p. 117. Similarly, Sandoz/Swinarski/Zimmermann, paras. 2105 (also admitting that ‘the wording is not perfect’); CDDH/215/Rev. 1, para. 75 and CDDH/III/264/Rev. 1, p. 349 (‘Another confusion in paragraph 2 is caused by the interplay of purpose and motive.’). Rosenblad, International Humanitarian Law, p. 117. Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (adopted in The Hague on 18 October 1907, and entered into force on 26 January 1910). Rosenblad, International Humanitarian Law, p. 107. See, for more on this complex issue, Mudge, pp. 244-245. Cassese, The Geneva Protocols of 1977, p. 92. ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’, adopted by the ILC at its second session, in 1950 and submitted to the UN GA, imprinted in Yearbook of the ILC, 1950, Vol. II, para. 97.

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necessity’ was punishable as a war crime.147 In the Judgment of the case against Wilhelm List, et al., the US Nuremberg Military Tribunal held that the principle of military necessity ‘does not admit of wanton devastation of a district or the wilful infliction of suffering upon its inhabitants for the sake of suffering alone’.148 Cassese compares the regime of the Hague Regulations with art. 54 (2) API, and concludes that art. 54 (2) API upholds the Hague concept to a great extent: Art. 54 (2) API prohibits the destruction of objects indispensable to the survival only of civilians. Destroying means of subsistence used as sustenance solely for combatants or in direct support of military action is still allowed. It is also still permitted to destroy the means of subsistence used by both the enemy’s combatants and its civilians, but, unlike in the Hague Regulations, only to an extent that does not deprive civilians of all means of survival. Cassese argues that this means ‘one cannot starve civilians as a consequence of starving enemy combatants.’149 When art. 54 API is compared with previous treaty law, the only new provision at the time of adoption was that it was no longer legal to destroy essential objects that served both civilians and combatants. It is thus useful to determine if there is a customary rule of international law on this disputed issue. Customary International Law

It seems undisputed that means of subsistence that solely serve the civilian population may not be legitimately attacked. However, resources used only by the armed forces may arguably be destroyed. Art. 54 API codified existing customary law by prohibiting the destruction of objects indispensable to the survival only of civilians (para. 2) and by allowing the destruction of means of subsistence used as sustenance only for combatants, or in direct support of military action (para. 3).150 These provisions specify the general prohibition 147 148

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Principle VI (b) of the Nuremberg Principles, affirmed by the UN GA (GA Res. 95 [I]). Trials of War Criminals, Case No. 47, Trial of Wilhelm List and others, 8 July 1947 to 19 February 1948, imprinted in the Law Reports of Trials of War Criminals, Vol. 8, p. 66. It also stated: ‘The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the defeat of enemy forces. It is lawful to destroy railways, lines of communication, or any other property that might be used by the enemy. Private homes and churches may be destroyed if necessary for military operations.[...]’ (ibid.). Cassese, The Geneva Protocols of 1977, p. 92. Cf. Cassese, The Geneva Protocols of 1977, pp. 91-92. Rule 54 ICRC Customary Study is identical.

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of attacks against civilian objects, which has attained the status of customary international law.151 It is necessary to determine if art. 54 (3) (b) API’s additional condition that starvation and forced movement of civilians must be prevented follows customary law. Customary practice affirms this, and prohibits attacks on objects that are not used as sustenance solely for combatants, but nevertheless directly support military action, if the attack may be expected to starve the civilian population or to force it to move.152 This condition stems from the general prohibition on starving civilians. Art. 54 API was adopted by consensus. The reservations made concerning art. 54 (2) API, inter alia by France and the UK, only underscore the already existing aspect of this provision: Attacks that are carried out for a specific purpose other than denying sustenance to the civilian population or the adverse party are not prohibited.153 I conclude that both paras. 2 and 3 of art. 54 API are declaratory of customary law. The Eritrea-Ethiopia Claims Commission deliberated on this question in depth and held that, even though the prohibition on attacks against objects indispensable to the survival of the civilian population represented a significant advance in the prior law when it was included in API in 1977, it had become a part of customary IHL within two decades.154 Broad international acceptance of art. 54 (2) API is also reflected in international criminal law. Destruction of objects indispensable to the civilian population’s survival entails individual criminal responsibility under in151

152

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See UN GA Res. 2675 (XXV, of 9 December 1970), para. 5; Report of the UN Darfur Commission, 25 January 2005, p. 48, para. 166 (vi); 2004 British Manual of the Law of Armed Conflict, paras. 15-16.2. See Rule 7 ICRC Customary Study (principle of distinction between civilian objects and military objectives). See, for instance, the 2004 UK Military Manual, para. 5.19 (stating ‘[...] no action may be taken against these [in direct support of military action] objects if it “may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement”.’). For further details, see Rule 54 ICRC Customary Study, and the corresponding practice that relates to that rule. Gaudreau, p. 19 of the pdf version; Bothe/Partsch/Solf, p. 339. See Declaration of 11 April 2001 by France, para. 14; Declaration of 2 July 2002 by the UK, para. l (both available online at www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_ NORMStatesParties&xp_treatySelected=470). Other reservations only concerned reprisals: by Australia (O.R. Vol. VI, CDDH/SR.42, 27 May 1977, pp. 219-220), and Qatar (ibid., p. 234). Eritrea-Ethiopia Claims Commission, Partial Award, Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25-26, between the Sate of Eritrea and the Federal Democratic Republic of Ethiopia, The Hague, 19 December 2005, paras. 104-105.

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ternational law: ‘[E]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’ is a grave breach under the GC.155 Under the Rome Statute, ‘intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival’ constitutes a war crime in IACs.156 Given the numerous reservations expressed about prohibiting reprisals against means of subsistence indispensable to civilians, it is doubtful if it can be claimed that art. 54 (4) API constitutes customary law.157 In 1984, Cassese even ascribed this provision ‘merely conventional character’.158 Nevertheless, the prohibition of reprisals in regard to art. 54 API was adopted by consensus.159 In contrast to the vigorous debate over civilian reprisals in general, there was little resistance to prohibition of reprisals applied to sustenance objects in the negotiations.160 bb) Special Case: Offfensive Attacks in Self-Controlled Territory I demonstrated the extent to which destruction is prohibited within any part of a state’s national territory controlled or occupied by a foreign state (aa). 155

156

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Art. 147 GCIV. See also art. 50 of the Geneva Convention (I), for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (‘GCI’) and art. 51 of the Convention (II), for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (‘GCII’). See also art. 85 (3) (1) API. Art. 8 (2) (b) (xxv) Rome Statute. See also art. 8 (2) (b) (xiii) Rome Statute including ‘destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war’ as a war crime. See also art. 7 (1) (b) Rome Statute (‘extermination’). For details, see Marcus, p. 270; Pejic, p. 1100. See, for instance, the UK’s reservation about reprisals: ‘[i]f an adverse party makes serious and deliberate attacks, […] in violation of Articles [..] 54 […] on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government.’ (Declaration of 2 July 2002 by the UK, para. m, available online at www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_ viewStates=XPages_NORMStatesParties&xp_treatySelected=470). See also Gaudreau, p. 17 of the pdf version. Cassese, The Geneva Protocols of 1977, p. 93. Cf. Bothe/Partsch/Solf, p. 342. In favour of a customary status see, inter alia, Allen Ch., p. 66. Similarly, Kaufmann asks if reservations against reprisals in general are even permitted under international public law (for details, see ead., Hunger als Rechtsproblem, pp. 200-201).

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Next, I consider whether the prohibition also covers attacks by a state on national territory that is under its own control. The prohibited acts of destruction (‘attack, destroy or render useless’) that are described in art. 54 (2) API are based on the narrow definition of ‘attacks’ offered in art. 49 API. ‘Attack’, within the meaning of art. 49 (1) API, covers only acts of violence that are mounted ‘against the adversary’. It must be determined which criteria are decisive to determine if an object belongs to the adversary. At the time they were drafted, the documents indicated that classification as an ‘adversary’ based on the territory in which the critical civilian objects resp. populations were located, and within which the respective attack was carried out. During the Diplomatic Conference, it was asked if there was an obligation only to respect objects situated in the part of the territory controlled by the adversary, or also to respect those in one’s own territory.161 So the relevant question is here whether, e contrario, it is permitted to destruct objects indispensable to the civilian survival, and thus starve civilians, if the destructive action is not conducted against the adversary?162 It would be very unsatisfactory if such situations were not covered by art. 54 API.163 Aside from the defensive scorched earth tactic (discussed in chapter 2.2), a state’s party might destroy objects within territory under its own control. Admittedly, this kind of starvation might be a rare occurrence. However, in scattered conflict settings, fronts are often unclear and changing. Affected civilians must often make arrangements with all parties to the conflict to secure their survival. Often the only option for rescue is to seek refuge within a secure zone in the country, or flee beyond the national border.164 Particularly in armed conflicts rooted in tribal feuds, or those that generate

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O.R. XIV, p. 136, CDDH/III/SR.16, para. 43; O.R. XV, p. 280, CDDH/215/Rev.1, para. 77; CDDH/III/264/Rev. 1, p. 350. See also the concept underlying arts. 49 (2) and 54 (5) API. For details on the notion of ‘control’ used in art. 54 API, see Sandoz/Swinarski/Zimmermann, paras. 1889-1890 and 2118. See, for instance, Argentina’s Law of War Manual of 1989 (para. 4.03) and Madagascar’s Military Manual of 1994 (para. 27), which state precisely: ‘prohibited to starve the civilian population of the adversary’. The justification that a belligerent power may carry out destruction in that part of its own territory where it exercises authority, ‘while preserving the interests of its own population’ is, in my opinion, too optimistic (see the position in ICRC Commentary to justify the exception of art. 54 [5] API: Sandoz/Swinarski/Zimmermann, para. 2119). See the Peacebuilding Guidelines by the Swiss Agency for Development and Cooperation (SDC), Bern: Swiss Federal Department of Foreign Affairs (FDFA), February 2003, p. 8.

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massive refugee flows, the situation might be complex.165 For example, the armed conflict in Darfur spread over to the neighbouring countries like Chad and the Central African Republic, and developed into an internationalised proxy-war. How can a possible allegiance to the enemy be determined in a conflict with such blurry front lines? The close linkage between arts. 49 and 54 API is evident when one looks at the history of both articles through their respective drafts. The ICRC draft contained two similar articles on ‘objects indispensable to the survival of the civilian population’ (arts. 48 and 66 of the Draft API). The latter provision was addressed to the party to the conflict in whose power the objects indispensable to the survival of the civilian population remained.166 But many states did not wish to limit the means of war available to them within their national territory: These states particularly insisted on retaining their means of defence of their national territory against invasion.167 Committee III subsequently adjusted draft art. 66 API, whose para. 1 later became today’s art. 49 (2) API, and whose para. 2 contained the defensive scorched earth exception of today’s art. 54 (5) API.168 Despite the linkage between arts. 54 and 49 API, and the fact that the relevant definitions of both articles were jointly discussed in the Diplomatic Conference, destructive acts, within the meaning of art. 54 (2) API, are still carried out by very different means than those used in an attack, and also

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Similarly, the ICTY highlighted in its Tadic Case that in inter-ethnic conflicts, ethnicity may be more relevant to assess allegiance to a belligerent party than nationality (ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999, para. 166). Sandoz/Swinarski/Zimmermann, paras. 1883-1884. See also the representative of the ICRC who explained that art. 48 of the Draft API (today’s art. 54 [2] API) was ‘not intended to cover the question of destructive measures by a Party to the conflict relating to objects in its power’ (CDDH, O.R. Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 141, para. 2), but that this article only ‘provided for a general prohibition of destruction of objects in enemy hands’ (ibid., para. 3). The protection of objects in the power of a party to the conflict was then clearly covered by art. 66 of the Draft API ‘under the section concerning the treatment of persons in the power of a Party to the conflict’ (O.R. Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 141, para. 2). In the negotiations of 1974, the provision already read as follows: ‘[...] 2. Consequently, without prejudice to the rights of High Contracting Parties on their own territory, it is forbidden to attack, destroy or render useless [...]’ (CDDH/III/67, 19 March 1974, in O.R. Vol. III, p. 218). O.R. Vol. XV, p. 492, CDDH/407/Rev.1, Annex II. See also the explanatory report of Committee III in O.R. Vol. XV, pp. 462-463, CDDH/407/Rev.1, paras. 49-53.

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explicitly include other acts (to ‘destroy, remove or render useless’).169 The Rapporteur of Committee III asked during the Diplomatic Conference if the further prohibitions in art. 54 (2) API, ‘other than that on attack (which by definition is against the adversary), apply to acts by a State against objects under its control and within its own national territory.’170 The representatives were divided in their answers, but agreed to review the extent to which this provision was intended to have such an effect within a state’s own territory.171 That the Diplomatic Conference found it necessary to discuss, in depth, the exception of a defensive scorched earth tactic, shows that the state parties did not assume that the general prohibition of art. 54 (2) API was strictly limited to the scope of art. 49 (1) API. At the least, it shows they were divided on the question, and thus laid down the exception of a defensive scorched earth tactic in a state’s own territory (art. 54 [5] API). According to the ICRC Commentary, it follows from this exception in art. 54 (5) API […] that a belligerent, part of whose territory is controlled by the enemy, cannot mount attacks in such territory against objects indispensable to the survival of the population in violation of the provisions of the Protocol, whereas the belligerent could, in case of imperative military necessity, destroy such objects in the part of its territory under its control in order to counter an invasion.172 In my opinion, this implies, e contrario, that other destructive acts carried out within a state’s own territory, and which are not covered by the scope of this exemption, are also banned.173 I suggest that civilians be protected from all offensive attacks, whether or not they are directed against the adversary. It could also be argued that art. 54 (5) API only restates art. 49 API, and, by highlighting the case of application that seemed most important, assured that destructive acts carried out in the national territory under own control would not be covered by art. 54 (2) API. But such reasoning would be out of 169 170 171 172 173

See art. 54 (2) API. See also the similar argumentation in Sandoz/Swinarski/Zimmermann, para. 1890. O.R. Vol. XV, p. 280, CDDH/215/Rev.1, para. 77; see also, CDDH/III/264/Rev. 1, p. 350. O.R. Vol. XV, p. 280, CDDH/215/Rev.1, para. 77. Sandoz/Swinarski/Zimmermann, para. 1888. See Allen Ch., p. 68. See also the ICRC Commentary that generally states, as regards the scope of paras. 1-3 of art. 54 API, that ‘objects indispensable to the survival of the civilian population are protected by this article when they are located in the territory held by the Party to the conflict concerned or that of a co-belligerent as well as in enemy territory’ (Sandoz/Swinarski/Zimmermann, para. 2113).

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line with the underlying prohibition of starvation of art. 54 (1) API. Art. 54 (1) API embodies a general prohibition, without reference to ‘attacks’ or other specific military operations. A restrictive interpretation would similarly limit the protective scope provided by arts. 51 and 52 API.174 Henderson is persuasive in his argument that a ‘State’s own civilians are immune from the consequences of an attack just as much as are the enemy’s civilians’.175 It would be detrimental to the principles of distinction and proportionality to claim that these attacks are not covered, since offensive destructive attacks against civilian objects in one’s own territory can hardly be justified as militarily necessary, when that territory is under one’s own control.176 An argument to the contrary would strip the very broad protections of civilians that were precisely envisaged by API. API intended to protect all human beings within the territory of a party to the conflict, as long as they do not take part in the hostilities.177 My interpretation in favour of a broad protection of the civilians is supported by the VCLT: An international treaty shall be interpreted not only in the light of its wording, but also in the light of its object and purpose (Art. 31 VCLT). Art. 49 (2) and (4) API indicate that the provisions of API ‘relating to attacks and the effects thereof apply to the whole of the population present in the territory of the Party to the conflict, even if it is under enemy control – as does Part II of the Fourth Convention’.178 Both of these support the argument that art. 54 API is universally applicable.179 If such a broad argumentation is not convincing, customary international law,

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They also both refer to the term ‘attack’. Henderson, p. 228. He considers this distinction of nationality as unacceptable as distinctions between certain ethnic groups (ibid., with a detailed analysis on this issue on pp. 227-229). The ICTY confirmed an ‘unconditional and absolute prohibition on the targeting of civilians in customary international law’ (ICTY, The Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1, Trial Chamber, Judgment of 12 December 2007, para. 906; cf. similarly ICTY, The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14, Appeals Chamber, Judgment of 29 July 2004, para. 109). See Projets de Protocoles additionnels aux Conventions de Genève du 12 août 1949, Commentaires, ICRC, Geneva Octobre 1973, p. 57 (about art. 45 of the proposed Draft API submitted by the ICRC); O.R. Vol. XIV, p. 14, CDDH/III/SR.2, para. 8. Sandoz/Swinarski/Zimmermann, para. 1891. See also ibid., para. 1900, that also points out that the scope of API is as broad as Part II of GCIV which covers the whole population of all countries in conflict; and, Bothe/Partsch/Solf, p. 342, FN 23. Cf. also Allen Ch., p. 67.

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the principles of humanity and public conscience, and HRL serve as a last resort.180 b) Non-International Armed Conflicts I have argued that destruction of objects indispensable to the survival of the civilian population in IAC is broadly prohibited by art. 54 (2) API, and highlighted the exceptions of this general prohibition in art. 54 (3) API. I now consider the same situation in the context of NIACs. The scope of the analysis is limited to aggressive acts of destruction in offensive operations within the national territory of a state, which occur commonly in NIACs. I take as my paradigm the destruction caused by government counter-insurgency campaigns against rebel areas, and illustrate this scenario with the example of the large-scale destruction carried out by the Sudanese government against the Darfurian rebel groups. In NIACs, there are two possible scenarios in which destructive attacks can be carried out against the civilian population within a state’s own territory. These need to be examined separately: I first analyse starvation tactics carried out within an area of a state that is controlled by adverse armed groups (aa). Then I will address the special case of the use of starvation tactics within national territory the state itself controls (bb). aa)

Offfensive Attacks in Territory under Enemy Control Prohibitions in Art. 14 APII

Aggressive destructive tactics against the civilian population in NIACs clearly fall within the ambit of art. 14 APII, and precisely within its second sentence. Art. 14 APII prohibits the belligerent parties from attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, if carried out for the purpose of starving civilians as a method of combat. Such specific legal protection for objects indispensable to the survival of the civilian population is very important since APII, unlike API (in its art. 52), does not protect civilian objects in general.181 Art. 14 second sentence APII covers all acts and omissions that may cause starvation. The ICRC Commentary indicates that the list of enumerated verbs

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Art. 1 (2) API. See also the Preambles of the 1899 and 1907 Hague Conventions. For a discussion on the relationship between IHL and HRL, see pp. 251ff. Sandoz/Swinarski/Zimmermann, para. 4794; Kaufmann, Hunger als Rechtsproblem, p. 215.

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only emphasises certain acts, but does not constitute an exhaustive list.182 According to the ICRC, belligerent parties are not even allowed to ‘deliberately decide not to take measures to supply the population with objects indispensable for its survival in a way [that] would become a method of combat by default’.183 The list of protected objects is also only illustrative (indicated by the words ‘such as’).184 This provision provides absolute protection against intentional attacks on such indispensable objects, even if there is no de facto effect on the civilian population’s food supply.185 Though it was intended as a shorter form of art. 54 API for use in internal situations, art. 14 APII was still understood to preserve the essence of art. 54 (2) API.186 However, a comparison of both articles shows that the concise formulation of art. 14 APII lacks the clause ‘for their sustenance value’. Strictly interpreted, this could mean that the prohibition of destruction only covers goods that are dedicated exclusively for use by the civil population. It fails to take into account that, in case of food shortages, the highest priority of available sustenance materials is assigned to fighters.187 Bothe, Partsch, and Solf explain that ‘[a]lmost invariably the underlying purpose of denial actions against objects having sustenance value is to weaken the adversary’s armed forces, even though their actual effect tends to diminish substantially the civilian share of these resources’.188 Art. 54 API does take this into account and only allows denial actions that demonstrably affect the adverse party’s armed forces exclusively (para. 3). Art. 14 APII does not go as far, and does not prohibit the destruction of objects for their sustenance value to both the adverse party’s forces and the civilian population.189 A restrictive interpretation of art. 14 APII’s clause ‘for that purpose’ would thus narrow the scope of the prohibition down to actions taken for the purpose of starving the civilian population and limit the application of art. 14 APII to quite exceptional 182 183 184 185 186 187 188

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Sandoz/Swinarski/Zimmermann, para. 4800 (justifying this argument with the used word ‘therefore’). Ibid. CDDH , O.R. XIV, p. 137, CDDH/III/SR.16, para. 46; Sandoz/Swinarski/Zimmermann, para. 4802. Provost, p. 604. Bothe/Partsch/Solf, p. 680. Ibid.; Kaufmann, Hunger als Rechtsproblem, p. 215. [Emphasis in original] Bothe/Partsch/Solf, p. 680. See also the Swedish delegation, which points out in the negotiations that ‘it was inevitably the civilian population that suffered first. The soldiers were the last to be without food.’ (CDDH, O.R. Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 145, para. 18). For a critical discussion, see Bothe/Partsch/Solf, p. 680.

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circumstances: When the denial action taken against sustenance materials is intended exclusively to deny them to the civilian population. But the destruction is usually carried out with the main goal of weakening the enemy armed forces, not civilians. Precisely this case would then be permitted. Such a literal construction contradicts the intent of the GCs.190 Bothe, Partsch, and Solf suggest remedying the unfortunate formulation of art. 14 APII with the Martens clause included in the Preamble of APII; this requires the principle of proportionality be applied to the overall protocol. Denial actions would thus be limited against objects with sustenance value for both the armed forces and the civilian population, and would allow only those actions that did not have effects on civilians disproportionate to the anticipated military advantage.191 Without detecting the problematic formulation, the ICRC Commentary still comes to a similar conclusion, and points out that the prohibition of art.  14 APII ‘would be meaningless if one could invoke the argument that members of the government’s armed forces or armed opposition might make use of the objects in question.’192 It also interprets art. 14 APII as prohibiting the destruction of, or attack on, all objects indispensable to civilian survival, even if the adversary may benefit from them.193 In this view, the only exception to the prohibition is a case in which supplies are specifically intended as provisions for fighters. However, those objects used for military purposes by the adversary (such as cornfield that hinders the enemy in observation or attack) would also be excepted by the ICRC Commentary: Those objects may become a military objective and may need to be destroyed if that action does not risk starving the civilian population.194 Customary International Law

At the time APII was drafted, the protection of objects indispensable to the survival of the civilian population in NIACs was a new rule of IHL.195 It then belonged to the innovative provisions that marked departures from existing 190 191 192 193

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Kaufmann, Hunger als Rechtsproblem, p. 215. Bothe/Partsch/Solf, pp. 680-681. See also Kaufmann, Hunger als Rechtsproblem, p. 215. Sandoz/Swinarski/Zimmermann, para. 4806. Ibid. In the negotiations during the Diplomatic Conference, it was already clear that the deprivation of such objects of their immunity, if used for military purposes, ‘would dangerously undermine the legal protection of food […] as it could always be alleged that some little use was made by the military of those objects’ (CDDH, O.R. Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 145, para. 18). Sandoz/Swinarski/Zimmermann, para. 4807 (referring to art. 54 [3] [b] API). Ibid., paras. 4793-4794.

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customary rules. While provisions that just restated and developed existing rules of customary law (based on common art. 3 GCs) were broadly accepted, there was remarkable opposition towards new rules.196 Developing countries opposed and often feared new rules would legitimate rebellions and serve as tools for foreign powers that wanted to interfere in their domestic affairs. Art. 14 APII was not yet binding on states that did not ratify APII. 197 The prohibition of the destruction of objects indispensable to the civilian population’s survival is now recognised as a rule of customary status.198 The prohibition only refines the general prohibition of civilian starvation by pointing out the most usual ways in which starvation is effected.199 Many contemporary military manuals note this prohibition, and are applicable or have been applied in NIAC.200 The exceptions to the general prohibition on attacking objects indispensable to the survival of the civilian population are not enshrined in state practice.201 This is not surprising, since the specific exceptions of art. 54 (3) API as regards IACs are also not mentioned in art. 14 APII. I therefore assert a broad prohibition on the destruction of objects indispensable to the survival of the civilian population in customary IHL, in line with the broad prohibition of art. 14 APII. This prohibition aligns with the general principle of distinction between civilian objects and military objectives, which prohibits attacks against civilian objects and is also recognised as customary international law.202 Indiscriminate attacks may also consti196

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Cassese, The Geneva Protocols of 1977, p. 110. Broadly-interpreted, however, art. 14 APII can be seen as ‘only a specific application of common Art. 3 [GC], which imposes on parties to the conflict the obligation to guarantee humane treatment for all persons not participating in hostilities, and in particular prohibits violence to life’ (Sandoz/ Swinarski/Zimmermann, para. 4794). Cassese, for instance, in 1984 interpreted the existing opposition of a remarkable group of states against this provision, precluding its binding effect beyond its contractual nature (Cassese, The Geneva Protocols of 1977, pp. 109-110). Rule 54 ICRC Customary Study; San Remo NIAC Manual, Rule 2.3.10 (2), p. 45. Cf. Sandoz/Swinarski/Zimmermann, para. 4800. For a collection thereof, see Rule 54, ICRC Customary Study. Argentina’s Law of War Manual, for instance, explicitly states for NIACs that ‘objects indispensable to the survival of the civilian population enjoy special protection’ (23 April 1990, para. 7.09). For further details, see ICRC Practice Relating to Rule 54, ICRC Customary Study. See, for instance, British Manual of the Law of Armed Conflict, para. 15.19.1. For details see also Rule 54 ICRC Customary Study. See also UN GA Res. 2675 (XXV, of 9 December 1970), para. 5; Report of the UN Darfur Commission, p. 48, para. 166 (vi); 2004 British Manual of the Law of Armed Conflict, paras. 15-16.2. For details, see also Rule 7 ICRC Customary Study.

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tute a war crime in NIAC.203 Under the Rome Statute, ‘destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict’ in NIAC may entail criminal liability.204 However, the Rome Statute does not explicitly criminalise the deliberate starvation of civilians in NIACs, as it does in IACs.205 It is instructive to analyse the 2005 Report of the UN Darfur Commission. There, it was necessary to assess the exact extent of customary law in NIAC, since Sudan was not yet party to the APII.206 The Commission held that the prohibition and criminalisation of a belligerent’s destruction of the property of a hostile party, when it was not justified by military need, constituted customary international law in the case of a NIAC.207 In casu, the Commission concluded that deliberate and wanton attacks against objects that are indispensable to the survival of civilian population even amounted to ‘a very serious war crime’208 and also to a crime against humanity.209 bb) Special Case: Offfensive Attacks in Self-Controlled Territory I demonstrated the extent to which destruction is prohibited in the part of a national territory that is controlled by the enemy (aa). Now I consider if the prohibition also covers attacks in territory the state still controls. The terms ‘attack, destroy or render useless’ in art. 14 APII were based on the wording of arts. 48 and 66 of Draft API (today’s arts. 49 and 54 API).210 Art. 49 API states that provisions of API, with respect to attacks, apply to all acts of violence re203

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Art. 8 (2) (e) (i) Rome Statute. See also the decision by the ICTY, The Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Trial Chamber (II), Judgment of 16 November 1998, paras. 202, 235) ruling that customary law has developed the provisions of the GCs so far that common art. 3 GCs violations are considered grave breaches of war. Art. 8 (2) (e) (xii) Rome Statute. See, art. 7 (1) (b) Rome Statute (crime against humanity of ‘extermination’) and the war crime of ‘pillaging a town or place’ (art. 8 [2] [e] [v] Rome Statute; art. 3 [e] ICTY Statute; art. 4 [f] ICTR Statute; art. 3 of the Statute of the Special Court for Sierra Leone) and of ‘collective punishment’ (art. 4 [b] of the Statute of the ICTR and art. 3 [b] of the Statute of the Special Court for Sierra Leone). Art. 8 (2) (b) (xxv) Rome Statute. For details, see Marcus, p. 270 (criticising this backward development of criminalising violations committed in internal conflicts and demonstrating that developments in customary international law are filling the gap). Sudan ratified the API on 13 July 2006. A list of the treaties ratified by Sudan can be found at www.geneva-academy.ch/RULAC. Report of the UN Darfur Commission, p. 49, para. 166 (x); and pp. 83-84, para. 318. An analysis of the findings of the UN Darfur Commission is provided in Yihdego, pp. 55-62. Report of the UN Darfur Commission, p. 84, para. 319. Ibid., p. 84, paras. 320-321. CDDH, O.R. Vol. XIV, p. 136, CDDH/III/SR.16, para. 43.

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gardless of the national territory they are conducted within (para. 2), as long as they are directed ‘against the adversary’ (para. 1). Art. 49 (2) API makes explicit that this includes attacks carried out in ‘the national territory belonging to a Party to the conflict but under the control of an adverse Party’. Thus, the classification as ‘adverse’ is based on the party in control over the territory on which an object resp. person is situated. At this stage, it is useful to examine the implications this narrow definition of ‘attacks’ in art. 49 API has for art. 14 APII. It is worrying that the described provisions might encourage an interpreter to draw the inverse conclusion: It is permitted to destruct objects indispensable for the civilian survival and thus starve civilians, if the destruction takes place within a territory that is under a state’s own control. However, this restrictive interpretation has been shown to be inapplicable in art. 54 API, and thus must also be inapplicable to art. 14 APII, since the latter is based on the former’s concept. At the time when the ICRC submitted art. 27 of Draft APII (today’s art. 14 APII) to the Committee, it answered affirmatively the question of a general obligation to respect objects indispensable to the civilian population in the whole of the territory.211 In the following discussions, this interpretation was not clarified conclusively regarding offensive attack, and was further explored only regarding the sensitive issue of defensive attacks against invasion. In my opinion, a fortiori, such objects are comprehensively protected against offensive attacks.212 In contrast to their fierce contest over means of defence, state parties did not insist on their military freedom of action to conduct offensive attacks. It could not have been the intention of the contracting states to make the protection of objects indispensable to the survival of the civilian population against offensive attacks conditional on the relevant control.213 Combat fronts and parties to the combat are often ambiguous in a NIAC.214 Permitting offensive attacks on a state’s national territory, when that territory is under its own control, would dangerously undermine the legal protection given such indispensable objects. It is unacceptable that one of the parties be permitted to destroy or render useless objects indispensable to the survival of the civilian population living in the part of the territory under its own control, just because that party suspected that its population supported or sym211 212 213 214

CDDH, O.R. Vol. XIV, p. 136, CDDH/III/SR.16, para. 43. See also Sandoz/Swinarski/Zimmermann, para. 4809. See similarly Allen Ch., p. 67. Cf. also CDDH, O.R. Vol. XIV, CDDH/III/SR.18, 12 February 1975, p. 152, para. 6; and CDDH, O.R. Vol. XIV, CDDH/III/SR.18, 12 February 1975, p. 151, para. 3. See the Peacebuilding Guidelines by the SDC, Bern: FDFA, February 2003, p. 8.

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pathised with the adversary.215 It is useful to turn to the on-going armed conflict in the Democratic Republic of the Congo (DRC), where ethnic tensions and inequitable access to land have turned more than 2.2 million people into internal refugees.216 Armed groups have repeatedly attacked IDP’s in their camps and have, inter alia, stolen their food packages.217 Protection against offensive attacks would be unsatisfactory if it relied only on classifying the civilian population based on the territory in which they lived. Attacks on displaced civilians are common; IDP’s are often perceived as the enemy, particularly in civil wars with divisions along racial, ethnic or religious lines. They are particularly vulnerable because it is tempting to associate them with an insurgent group or an opposing ideology, or to target them because they are considered inferior or threatening.218 Art. 14 APII not only prohibits states from attacking, but also from destroying, removing, or rendering useless objects indispensable to the survival of the civilian population.219 The ICRC expert pointed out during the Diplomatic Conference that the APII’s terms ‘attack, destroy or render useless’ were chosen to cover all possible situations.220 In addition, the protection afforded by APII to the civilian population was deliberately not limited to enemy civilians.221 Art. 13 (1) APII thus provides ‘general protection against the dangers arising from military operations’ to all civilians, without any distinction.222 The ICRC aptly pointed out in its Commentary that when a state became a contracting party to APII, it accepted

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Sandoz/Swinarski/Zimmermann, para. 4811. See the 2013 country operations profile on the DRC by the Office of the United Nations High Commissioner for Refugees (UNHCR), para. 1, available at www.unhcr.org/ pages/49e45c366.html. ‘UNHCR concern for IDPs after camp attack in eastern Congo’, UNHCR News Report of 4 December 2012, available at www.unhcr.org/50bdc8ef6.html. UNHCR, The State of the World’s Refugees 2006 – Human Displacement in the New Millennium, Preface by the UN Secretary-General, 19 April 2006. For details on the protection of IDPs, see the Guiding Principles on Internal Displacement (particularly Principle 10 [2] [2] on the protection of IDPs against starvation as a method of combat); art. 17 (1) APII; Rules 129-133, ICRC Customary Study; Hickel. See CDDH, O.R. Vol. XV, p. 280, CDDH/215/Rev.1, para. 77; see also CDDH/III/264/Rev. 1, p. 350. CDDH, O.R. Vol. XIV, p. 136, CDDH/III/SR.16, para. 43. The narrow scope of protection provided by GCIV was abandoned in the APs. Nevertheless, art. 13 (2) APII again focuses on ‘attacks’ only within the meaning of art. 49 API. See for details, Sandoz/Swinarski/Zimmermann, para. 4783.

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[…] for purely humanitarian purposes that certain rules will be applicable to its own nationals within the confines of its own territory. If the characteristics of this sort of situation are taken into consideration, it is clear that objects in the possession of one of the parties may change hands rapidly, several times back and forth, depending on what part of the territory it controls.223 In any case, the fundamental principles of distinction and proportionality are part of customary IHL, and provide, beyond international treaty law, unlimited protection against attacks on civilians that are not justified by military necessity. The minimum guarantees offered by common art. 3 GCs are valid regardless of the conditions of APII and apply ‘in the whole territory of the State engaged in the conflict’.224 Possible limitations of the scope of application of APII do not modify the pre-existing conditions for the application of common art. 3 GCs, since art. 1 APII explicitly emphasises the autonomy and continuous validity of common art. 3 GCs.225 The Martens Clause also protects every human being through ‘the principles of humanity and the dictates of the public conscience’.226 2.2 Defensive Scorched Earth Tactics I demonstrated that offensive attacks against objects indispensable for the survival of the civilian population are, with few exceptions, comprehensively prohibited. Now I examine the legality of a defensive scorched earth tactic, i.e. the tactic of destroying anything that might be useful to the enemy in 223

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Sandoz/Swinarski/Zimmermann, para. 4810. The ICRC already took a similar position when it drafted the Protocols, stating: ‘Dans le cadre de ce Chapitre sont considérés comme civils tous les êtres humains qui se trouvent sur le territoire d’une Partie contractante où se déroule un conflit armé au sens de l’article premier et qui ne font pas partie des forces armées ou groupes armés. Les civils sont protégés contre les effets des hostilités vis-à-vis de toutes les parties au conflit.’ (Projets de Protocoles additionnels aux Conventions de Genève du 12 août 1949, Commentaires, ICRC, Geneva Octobre 1973, p. 162 [about art. 25 of the proposed Draft APII submitted by the ICRC]). See ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment of 2  September 1998, para.  619; ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, A., para. 68. See also art. 1 APII. See Sandoz/Swinarski/Zimmermann, para. 1350. For historical details, see Abi-Saab; Kaufmann, Hunger als Rechtsproblem, pp. 211ff. See the Martens clause in preambular preamble para. 4 APII. Human rights may also provide remedy (see the deliberations on the relationship between human rights and IHL, on pp. 251ff.).

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defence of the own territory against invasion. I have already illustrated this defensive tactic of warfare with the example of the destruction of villages and crops by the Russian army in 1812: The Russian army devastated its own national territory to weaken the invading French army. In this chapter, I cover defensive scorched earth tactics in the context of IACs (a), and in NIACs (b). a) International Armed Conflicts Art. 54 (5) API explicitly allows derogation from the prohibitions contained in its para. 2 in defence of national territory against invasion (scorched earth policy). In this subparagraph, I analyse the content of this explicit permission and determine if this permission has attained customary status. Exception of Art. 54 (5) API This provision was not contained in the ICRC draft (art. 48 of Draft API). At the Diplomatic Conference it soon became clear that many states did not wish to limit their available means to defend their national territory against an invader, including carrying out scorched earth policy.227 The preliminary debate about possible interference, based on the definition of ‘attack’ in art. 49 (1) API in connection to art. 54 API, expanded to the debate over prohibiting defensive scorched earth tactics. To be precise, a defensive scorched earth tactic undertaken by a belligerent in his own territory would not meet the definition of attack given in art. 49 (1) API.228 Though a defensive scorched earth attack would prevent or slow down the advance of opposing forces, the attack is still directed at a state’s own population, and thus only indirectly affects the adversary. Strictly speaking, this strategy falls outside the scope of the prohibition of art. 54 API. Nevertheless, the fact that the states agreed on explicitly allowing a defensive scorched earth tactic carried out in a state’s own territory (art. 54 [5] API) implies that they assumed this issue to be included in art. 54 API.229 Art. 54 (5) API permits scorched earth tactics if a belligerent is defending its own national territory against invasion, on three conditions: 1) The actions under para. 5 presuppose the existence of an imperative military necessity. Attacks not motivated by ‘imperative military necessity’ are certainly deliberate attacks against the population as such.230 2) The scorched earth tac227 228 229 230

Sandoz/Swinarski/Zimmermann, para. 2116. Ibid., para. 1890. CDDH, O.R. Vol. XV, p. 462, CDDH/407/Rev.1, para. 51. For more on the condition of ‘imperative military necessity’, see Rosenblad, International Humanitarian Law, p. 118; CDDH, O.R. Vol. XV, p. 462, CDDH/407/Rev.1, para. 51.

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tic is only approved within that part of a belligerent’s own national territory which is under its own control. Hence, any destruction of enemy territory or of a part of the own national territory, which is under de facto enemy control, falls outside the scope of art. 54 (5) API.231 Based on the previous conclusions, this is covered by art. 54 (2) API and thus banned.232 If part of a party’s own territory is under belligerent occupation, that party is thus prohibited from attacking objects within the occupation area if the intent is to deny sustenance.233 Scorched earth tactics may only be applied at the cost of a state’s own population, and not be carried out on enemy territory to damage the enemy civil population. 3) The scorched earth measures can be adopted solely in retreat within the national territory, and not to liberate an area from the enemy.234 Scorched earth practices that fall outside the narrow exception in para. 5 of art. 54 API are impermissible.235 From a humanitarian point of view, permitting scorched earth tactics, even under limited conditions, is unsatisfactory. It indicates a compromise in favour of military necessity, regardless of the effects on the state’s own civilian population, and is based on the assumption that a belligerent power preserves the interests of its own population in that part of its territory where it exercises authority.236 But a scorched earth tactic is a means of ‘total defence’ and generally causes significant long-term damage to the country and its population.237 During the Diplomatic Conference, several representatives expressed dissatisfaction with the admission of this strategy because of its obvious anti-humanitarian implications.238 A state may generally try to avoid starving the population in the devastated territory under its own control by providing other means of sustenance, but it might treat individuals less favourably if it associates them with the enemy. There is a grey area between a territory under a state’s own control 231 232 233 234 235 236 237 238

The term ‘control’ refers to areas of ‘de facto control’ (CDDH/407/Rev. 1, p. 463, para. 52; CDDH/III/369, p. 516). Cf. also Dinstein, The Conduct of Hostilities, pp. 219-220. Not all states supported this limitation of the right of a state to defend its sovereign territory. See CDDH/III/SR.58. paras. 6 and 14. In favour of this interpretation, see Allen Ch., p. 68; Sandoz/Swinarski/Zimmermann, paras. 1888 and 2122. Dinstein, The Conduct of Hostilities, p. 219; Sandoz/Swinarski/Zimmermann, paras. 2117-2119. Cf. Allen Ch., p. 68; CDDH/407/Rev. 1, p. 492; CDDH/III/369, p. 516; Sandoz/Swinarski/ Zimmermann, para. 1888. This assumption is found in Sandoz/Swinarski/Zimmermann, para. 2119. Sandoz/Swinarski/Zimmermann, para. 2116. CDDH, O.R. Vol. XV, p. 462, CDDH/407/Rev.1, para. 51.

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(art.  54 [5]API) and a territory under enemy control (art. 54 [2] API). Individuals who find themselves on enemy territory, without attaining de facto control in this territory, fall in this gap: They come under art. 54 (5) API and are thus not protected by the prohibition of art. 54 (2) API.239 However, these findings can be mitigated by the obligation to impartially provide humanitarian assistance to all individuals in need.240 Customary International Law Rosenblad holds that para. 5 of art. 54 API was included during the Diplomatic Conference because it reflected the prevailing customary practices of certain states.241 The Swedish delegation also pointed out in the negotiations that a scorched earth policy used to stop enemies from invading a party’s own territory was grounded on ‘a deep-rooted practice which should be taken into account’.242 Several military manuals and official statements endorse the exception of a scorched earth policy applied in defence of national territory against invasion.243 The ICRC Customary Study indicates that also, states not party to API endorse a defensive scorched earth policy.244 In IAC, the exceptional right to self-defence on a state’s own territory can be seen as customary international law. b) Non-International Armed Conflicts Art. 54 (5) API contains explicit permission for defensive scorched earth tactics in IACs. In contrast, art. 14 APII does not contain such an exception to the general prohibition of starvation of civilians in NIACs. I thus consider the consequences of this missing regulation and determine if a relevant rule can be found in customary law. The Provisions of Art. 14 APII The fact that defensive scorched earth tactics are explicitly permitted under certain conditions in IACs (art. 54 [5] API), but not in NIACs, may imply, e contrario, that, in NIAC, it is prohibited to defensively destroy objects indispensable for the civilian population in the whole of the territory of the belligerent parties. 239 240 241 242 243 244

The provisions on the protection of individuals in the hand of the enemy must still be respected (see art. 4 GCIV). See Chapter 3, pp. 235ff. Rosenblad, International Humanitarian Law, p. 117. CDDH, O.R. Vol. XIV, p. 145, CDDH/III/SR.17, 11 February 1975, para. 19. Rule 54, ICRC Customary Study. See, for instance, Israel’s Manual on the Rules of Warfare on the Battlefield (2006, p. 25). For details, see ICRC Practice Relating to Rule 54, ICRC Customary Study.

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During the Diplomatic Conference, the state parties were adamant in retaining the means to defend their territory against invaders and their freedom of action in the territory under their own control. It soon became clear that a scorched earth policy based on imperative military necessity could not entirely be ruled out. There was lengthy discussion over permitting defensive scorched earth tactics in connection with the corresponding art. 54 API, but these tactics were neither confirmed nor dismissed with regard to APII.245 The state parties thus only established an exception for a scorched earth tactic in an IAC.246 This suggests that the states did not wish to limit the general prohibition of starvation in NIAC. State parties did not except defensive scorched earth policies for NIACs in art. 14 APII, so, in light of the deliberations over broadly protecting all indispensable objects for civilian survival within a state’s own territory, the contracting states could not have intended to permit this tactic in internal conflicts.247 Consequently, this exception does not apply to the general prohibition of starvation in art. 14 APII.248 Customary International Law In customary international law, no distinct exception for a defensive scorched earth policy can be found in NIACs; this implies that such tactics are covered under the general prohibition of destruction of objects indispensable to the survival of the civilian population. Some countries prohibit a scorched earth policy in all armed conflicts.249 The states that allow a defensive scorched earth tactic do not explicitly limit the exception to IACs. Nevertheless, they

245 246 247

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Sandoz/Swinarski/Zimmermann, para. 4809. CDDH, O.R. Vol. XV, p. 462, CDDH/407/Rev.1, para. 51. See also the statement of the Irish representative during the CDDH. His delegation ‘considered that that prohibition should be extended to the entire territory of the Parties to the conflict’ (CDDH, O.R. Vol. XIV, CDDH/III/SR.18, 12 February 1975, p. 152, para. 6). The representative of the Union of Soviet Socialist Republics also emphasised that the purpose of Draft APII was to reduce the frightful effects of internal conflicts on the civilian population (CDDH, O.R. Vol. XIV, CDDH/III/SR.18, 12 February 1975, p. 151, para. 3). Cf., similarly, Rule 54 ICRC Customary. See, e.g., Colombia, Basic Military Manual (Derecho Internacional Humanitario – Manual Básico para las Personerias y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 49, para. 339). See also Switzerland’s Basic Military Manual (Lois et coutumes de la guerre, Règlement 51.7/II f, Armée Suisse, 1987, art. 35, Commentary). For details, see ICRC Practice Relating to Rule 54, ICRC Customary Study.

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permit this tactic only against enemy invasion.250 The term ‘invasion’ implies the existence of an IAC, since it describes ‘a hostile entry by an armed force into a country’s territory, especially with the intention of conquering it’251. This also implies defensive scorched earth tactics were not intended to be excepted for NIACs.252 Now that I have elaborated the provisions IHL foresees to prohibit starvation of civilians as a method of warfare in general (1), and examined the first scenario in which objects indispensable to the survival of the civilian population may be destroyed (2), I will turn to the second scenario in which starvation tactics are used as a method of warfare: starvation by food blockade (3).

3

Starvation of the Civilian Population by Food Blockade

In the example of the Biafra conflict, we saw that starvation can be inflicted upon a population by blockade or siege. During the war of secession in Nigeria, from 1967 to 1970, the siege of Biafra starved the civilian population. Also in the Darfur conflict, belligerent parties deliberately blocked humanitarian aid and made food even scarcer that it already had been in the face of broad destruction. This section considers starvation in besieged or encircled areas. Before analysing the legal regimes, I define and illustrate the terms ‘blockade’ and ‘siege’. The particularities of these legal regimes are then outlined and examined as they relate to starving the population (3.1). I then cover the sensitive issue of blocking humanitarian relief (3.2). Throughout this section, I analyse IACs and NIACs together. In casu, the distinctions between the regimes are 250

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See, for instance, Australia’s Manual of the Law of Armed Conflict stating: ‘Objects indispensable to the survival of the civilian population are excluded from protection if […] the military necessity for the defence of territory against invasion so requires.’ (The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, para. 9.32; see already before in 1994 in Australia’s Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, para. 712). See also Côte d’Ivoire’s Teaching Manual, Vol. 2, November 2007, Book III, p. 31, para. II.2.5, and Book IV, pp. 3738, para. II.2.3; New Zealand’s Military Manual, November 1992, para. 504 (5); Sweden’s statement at the CDDH, O.R. Vol. XIV, CDDH/III/SR.17, 11 February 1975, p. 145, para. 19. For details, see ICRC Practice Relating to Rule 54, ICRC Customary Study. My definition of ‘invasion’ is drawn from the Macmillan Dictionary (available online at www.macmillandictionary.com). See also Sivakumaran, pp. 425-426 (supporting comprehensive prohibition of scorched earth tactics in NIAC).

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not complex since they are based, to a great extent, on the general prohibition against using starvation against the civilian population as a method of warfare.253 Explanation of Terms In this book, ‘blockade’ covers all kinds of blockades that deliberately cause starvation of a state’s own population; it includes naval, land and aerial blockades, and all acts or means of sealing off a place to prevent goods or people from entering or leaving, cutting off the population from its food supply.254 When I discuss ‘naval blockade’, however, it is in the context of the particular regime of rules that apply to naval warfare. A ‘blockade’ is not the same as a ‘siege’. A ‘siege’ is a military operation in which enemy forces surround a town or building, cutting off essential supplies, with the aim of compelling those inside to surrender by depriving them of essentials.255 A blockade may be part of a siege strategy. ‘Siege’ and ‘blockade’ are distinguished by their purpose: A siege is intended to force the surrender of the defenders and population of a place under siege. A blockade is solely intended to prevent the movement of people and goods. Kraska points out that a siege always includes a blockade, but not the reverse. Both may be forms of belligerent occupation, if the blocked resp. besieged party surrenders or is defeated militarily.256 A blockade can place pressure on an economy, and may be non-aggressive. But even economic blockades have a strategic element since a weakened economy can limit a nation’s military power to resist incursion.257 For example, after Saddam Hussein invaded Kuwait, in August 1990, the UN SC imposed a comprehensive trade embargo against Iraq 253 254

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Art. 54 (1) API; art. 14, first sentence APII. See the broad definition of blockade in the Oxford English Dictionary (Oxford: 2013 OUP). This broad term to describe de facto blockage accompanies the term ‘closure’, which is used similarly to describe imposed restrictions on the freedom of movement. See, for instance, the so-called ‘closure regime’ in Gaza, where free movement of Palestinians and humanitarian workers is blocked (see e.g. Report by the Special Rapporteur, Jean Ziegler, E/CN.4/2004/10/Add.2, 31 October 2003, para. 39; see also, the ‘West Bank closure system’ described in the report ‘West Bank Closure and Access’, OCHA, Occupied Palestinian Territory, 12 April 2005). Oxford English Dictionary (Oxford: 2013 OUP). See also Kraska, para. 21. Kraska, para. 1. The special regime of rules governing a belligerent occupation falls outside the scope of this analysis. Von Heinegg, Blockade, para. 1; Pictet, p. 178 (criticising the indiscriminate effect of complete economic and financial isolation, since it causes suffering to the population as a whole).

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and occupied Kuwait with the goal of persuading the Iraqi people to oppose Saddam Hussein, and thus to force him to retreat from Kuwait. Only medical supplies and, ‘in humanitarian circumstances’, foodstuffs were excluded from the embargo.258 In October 1990, the SC turned the economic embargo into a full-scale blockade, which also applied to food supplies.259 This food blockade dramatically jeopardised food security of the civilian population in Iraq and Kuwait.260 The Serbs used a siege strategy against Bosnian Muslims in the civil war in Bosnia. Serb forces laid siege to the Bosnian capital of Sarajevo for nearly four years, from 1992 till 1996.261 The Serbs, inter alia, purposely stopped and delayed aid convoys, so they could not reach Bosnian Muslims. In this case, the Serbs’ war objective was ethnic cleansing.262 Access to food was a crucial factor in this conflict and international humanitarian relief was deliberately hindered by both belligerents.263 Similarly, in the smouldering conflict in Syria, belligerent parties to the conflict have reportedly inflicted starvation upon the enemy by means of siege. Amnesty International reported, in November 2013, that Syrian government forces had laid siege to Moadamiya alSham for over a year. Neither food nor medical supplies were allowed to enter, and the residents were not allowed to leave the isolated town.264 Rebels also

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SC Res. 661, UN Doc. S/RES/661 (1990), para. 3. Ibid., para. 1. Provost describes the prevailing disagreement among the members of the SC over the food blockade and its exceptions (Provost, pp. 580-582). ‘Hunger and the Butcher’s Bill’, Economist, 8 September 1990, p. 45. The post-crisis damage to food security in the wake of the Gulf War is described in the Report by Under Secretary-General, Martti Ahtisaaripara, to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment, SC, 20 March 1991, UN Doc. S/22366, paras. 11-19. For an in-depth analysis, see Provost, pp. 577-639 (see, especially, pp. 583-588, on the effect of the food blockade on Iraq and Kuwait); critically also Thomas, pp. 114-115. See the chronology of the siege provided in Nizich, Appendix F, pp. 410-419. For details, see O’Balance. Cf. Thomas, pp. 115-116; Vihervuori. See the Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, para. 19. The situation of the civilians is described in UNHCR, Office of the Special Envoy for former Yugoslavia, Information Notes on Former Yugoslavia, 22 January 1993. For further details, see Nizich, pp. 275-277. Amnesty International, ‘Syria’s “town of the starving”’, 22 November 2013, available at http://livewire.amnesty.org/2013/11/22/syrias-town-of-the-starving/?utm_source=feed burner&utm_medium=feed&utm_campaign=Feed%3A+AILiveWire+%28Livewire++Amnesty+International%27s+blog%29.

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besieged other parts of the country, including Aleppo, which was under control of the Syrian army, with the intent of starving the enemy out.265 Sieges or blockades that inflict hunger upon a state’s own population mainly take place in NIAC. As in the civil war in Syria, ‘starvation-blockades’ can be used to weaken hostile rebel areas on a state’s own national territory.266 In an IAC, belligerent parties rarely blockade populations on their own national territory, but, as in the internationalised conflict in Darfur, sometimes the fronts are not clearly delineated. In an inter-governmental conflict, one’s enemy is not necessarily situated on the other side of the national border. When Serb forces laid siege to Sarajevo, the front- and borderlines were particularly blurred. The conflict between Bosnian and Serb forces began before the international community recognised the dissolution of the former Socialist Federal Republic of Yugoslavia into several independent states.267 Subsequently, the ICTY noted that in modern inter-ethnic armed conflicts ‘new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance’.268 For the sake of completeness, I consider the relevant provisions governing IACs as well.269 3.1 Starvation in the Context of Blockade and Siege Warfare Blockade and siege warfare are generally lawful. They are intended to deprive hostile forces of supplies to conduct warfare.270 However, the legal situation is not as clear when civilians are affected along with fighters. I consider the legality of blockades in general (a), and then examine the particular legal regime that covers naval blockades (b). a) Blockades in General The historical development of the legal regime governing blockades must be explained, before the related outline of the regime of the 1977 APs can be presented. A separate examination of the relevant customary law is unneces265 266 267 268 269

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Bischoff. This strategy is applied by both belligerent parties, but I limit my discussion to the duties of states. Bosnia was admitted as a member state of the UN on 22 May 1992. The fighting around Sarajevo had started by 5 April 1992 (see Nizich, p. 410). ICTY, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999, para. 166. This is also necessary, since the question of whether the law of blockades applies at all to NIAC is still not settled, and uncertainty surround the recognition of belligerents and the applicability of the law of IACs. Kraska, para. 1.

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sary. The deliberations over blockades are based on the general prohibition of starvation of civilians as a method of warfare, and on provisions for humanitarian relief to civilians.271 Historical Background before the Adoption of the Additional Protocols During the two world wars, the besieged civilian populations suffered from starvation.272 It was then considered legitimate to starve civilians along with the military to force the enemy to surrender, even in cases in which the victims of starvation were mostly civilians.273 Blockades aimed exclusively at the civilian population had already been criticised as ‘incompatible with the general rules of humanitarian law and human rights’.274 Nevertheless, the legality of siege warfare was not questioned by state practice at the time.275 It was even lawful for the besieging force to prevent civilians from escaping to hasten a surrender: The more ‘useless mouths’ an enemy party had to feed, with the limited resources available in a besieged town, the faster they would surrender.276 The American Military Tribunal in Nuremberg confirmed this rule and held up the legality of German Field Marshal von Leeb’s order that the German artillery fire on Russian civilians who attempted to flee during the siege of Leningrad.277 The 1949 GCIV abridged this rule for a limited category of protected persons, and only in IACs. Art. 17 GCIV stipulated local agreements for the removal of ‘wounded, sick, infirm, and aged persons, children and maternity 271 272 273 274

275 276 277

Cf. the analyses on pp. 186f., and pp.242ff. For an in-depth analysis, see Provost, pp. 628-634 (illustrating relevant state practice). The sieges and blockades during WWI and WWII are illustrated by Kaufmann, Hunger als Rechtsproblem, pp. 29-35. See van Dongen, p. 211; Dinstein, The Conduct of Hostilities, p. 220. Critically, Provost, pp. 617-622. See, inter alia, the ICRC expert Pierre, who held in his 1969 analysis on the Biafra conflict in Nigeria that blockades that aimed exclusively at the civilian population must be regarded as ‘incompatible with the general rules of humanitarian law and human rights’ (Mertens, pp. 192-193). See similarly, Rosenblad, Starvation as a Method, p. 254. There are several historical precedents that focused on starvation of the civilian population (Kraska, para. 1). Dinstein, The Conduct of Hostilities, p. 221. High Command case, USA v. von Leeb et al., Judgment of 27 October 1948 by the American Military Tribunal, Nuremberg (imprinted in Trials of War Crimes before the Nuremberg Military Tribunals, Washington 1950, Vol. XI, pp. 462ff., p. 563). For details on the siege of Leningrad see Thomas, pp. 113-114; Kaufmann, Hunger als Rechtsproblem, p. 35.

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cases’ from besieged or encircled areas, and for the passage of, inter alia, medical personnel and equipment. The wording of this article (‘shall endeavour to conclude local agreements’278) indicates, however, that this provision is merely a strong recommendation that does not declare that evacuation is compulsory.279 Art. 23 (1) GCIV requires ‘free passage’, inter alia, for consignments of essential foodstuffs, and states that the material in question cannot be seized as war contraband.280 But as with art. 17 GCIV, only certain vulnerable groups of civilians benefit from this provision and the blockading power can act at its discretion.281 The GCIV of 1949 thus provided, and still provides, an unsatisfactory level of protection for the civilian population. An extension of this regime was thus urgently needed, especially for NIAC.282 Regulation of Blockade and Siege Warfare by the Additional Protocols The adoption of the APIs changed the legal situation radically for contracting parties. Doubts that blockades aimed deliberately at civilian population constituted illegal actions were eliminated when the APs were adopted in 1977: Art. 54 (1) API and art. 14 APII make it clear that starving civilians as a means of warfare is no longer admitted in either IAC or NIAC.283 But this does not, per se, prohibit food blockades.284 Theoretically, it is still legal to lay a siege to a military fortress, as long as only the sustenance of fighters is at stake.285 If a town houses a defensive force, but is also inhabited by civilians, it is unlikely that civilians will be spared from deprivation. Even when the object of a blockade is to deprive the enemy party of supplies to conduct hostilities, and not to starve civilians, civilians may suffer the most. The military garrison may fight alone on the fortifications, but civilian inhabitants will share in the privations. If they are not engaged in defence work, civilians are also likely to

278 279 280 281

282 283 284 285

Art. 17 GCIV. Cf., Pictet, pp. 138-139; Dinstein, Siege Warfare and The Starvation of Civilians, p. 147. Art. 23 (1), second sentence GCIV. See Pictet, p. 179. Rosenblad, Starvation as a Method, pp. 261-262. The free passage of relief consignments and the specific conditions that apply to humanitarian aid are discussed in-depth on pp. 235ff. In 1973, Rosenblad strongly recommended that new regulations be adopted (Rosenblad, Starvation as a Method, p. 262). Kaufmann, Hunger als Rechtsproblem, p. 197; Kraska, para. 10. Provost, p. 606. Dinstein, The Conduct of Hostilities, p. 221.

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get less food than fighters.286 Food shortages caused by siege or blockade may starve civilians, ‘well before [starvation] has a perceptible military effect’.287 The argument that a blockade or siege is intended only to depletion of the enemy’s food supplies to provoke its surrender, and not to starve civilians,288 is invalid as soon as it causes a food shortage in a territory where also civilians live.289 Provost holds that any blockade that produces such food shortages violates art. 54 API resp. art. 14 APII, since civilian starvation as a method of warfare is illegal, ab initio, and not merely when it results in a famine.290 But what indicates the specific intention to starve civilians as a method of warfare? When considering the disruption of food supply lines that feed both civilians and enemy fighters, the standard of art. 54 (3) API may be analogously applied. Such blockades are permitted only when food shipments are not stopped for their sustenance value, but because stopping them directly supports a military action.291 In this case, no specific intent to induce starvation is required to trigger the prohibition of art. 54 API. Blocking tactics may still be prohibited by art. 54 (3) (b) API: To avoid proliferation, according to Provost, blockades are banned even when they are not specifically directed against food or objects for their sustenance value; they are banned when they have the effect of eventually starving the civilian population.292 The legality of a food blockade must therefore be considered carefully, based upon the besieger’s conduct and the resources available to those under siege.293 What are the implications of this prohibition in practice? In order to protect the civilian population from food shortages, the besieging or blockading power must either let the civilian population out, or let in sufficient con286 287 288

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Kraska, para. 1; Dinstein, The Conduct of Hostilities, p. 224; Sandoz/Swinarski/Zimmermann, para. 2095. Provost, p. 607. See, for instance, the Swedish representative’s statement during the Diplomatic Conference (CDDH, O.R. Vol. XIV, p. 145, CDDH/III/SR. 17, para. 17). See also Sandoz/Swinarski/Zimmermann, para. 2095. Kaufmann strongly criticises the distinction the ICRC makes between purpose and motive. She calls it dangerous and holds that civilian suffering leaves no room for compromises (Kaufmann, Hunger als Rechtsproblem, pp. 197-198). Provost, pp. 607, 609. Also, Kaufmann, Hunger als Rechtsproblem, p. 197. Provost, p. 606 (giving the example of the German fat imports during World War II, which were used to make explosives). Provost, pp. 606. An effective blockade of food imports into a country with insufficient food provisions, where starvation cannot be prevented without additional imports, would also be illegal (Provost, pp. 606-607; Mudge, p. 237).

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signments of foodstuffs to feed them.294 Sieges of towns, then, can no longer be permitted if civilians are starved. Traditionally, a siege aims precisely at starving the besieged to force the encircled town to surrender.295 Logically, this objective can only be achieved if the people at the location starve while the besieged garrison persists in waging warfare.296 So the siege, inherently, is contrary to art. 54 API and art. 14 APII. Does that imply that sieges are prohibited, as a practical matter? IHL leaves this question unanswered:297 Art. 54 API and art. 14 APII do prohibit the use of force in preventing civilians from evacuating a besieged area, even if the intent is to force the surrender of the enemy therein. Civilians in a besieged town must be offered safe passage out of an encircled area.298 Even if they choose to stay, they still have a legitimate claim for on-going special protection against starvation since art. 54 (2) API also prohibits the use of starvation as a method of forcing civilians to move away.299 Given all these limitations, siege warfare with attendant starvation is banned, despite the allowed departure. This far-reaching prohibition of siege warfare affecting civilians is visionary, but does not take into account the realities of warfare.300 Dinstein agrees, noting that ‘[i]t stands to reason that the practice of States will not confirm the sweeping abolition […]’.301 It might be useful to adjust the strict language of art. 54 API far enough to permit siege warfare in cases in which the besieging force assures civilians of safe passage out. But API arguably does not regulate this case, precisely because it makes no sense to raise a siege when safe passage is offered to civilians from the encircled area.302

294 295 296 297 298 299 300 301

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Sandoz/Swinarski/Zimmermann, paras. 2095-2096; Provost, pp. 607-608; Kaufmann, Hunger als Rechtsproblem, p. 198. Dinstein, The Conduct of Hostilities, pp. 222-223; Kraska, para. 21. Dinstein, The Conduct of Hostilities, p. 223 (pointing out that foodstuffs and drinking water is thus only be made available, as soon as the town surrenders). Kraska shows how different views are supportable (Kraska, paras. 10, 21, 23). Bothe/Partsch/Solf, p. 338; Kraska, para. 23. See also art. 28 GCIV and art. 51 (7) API. See also arts. 7 (1) (d), 8 (2) (b) (viii) and 8 (2) (e) (viii) Rome Statute. See, for instance, Kraska, para. 23; Dinstein, The Conduct of Hostilities, p. 222. Kraska questions if it is practical to apply rules to siege that are more specific than general principles of military necessity, proportionality and distinction (Kraska, para. 23). Dinstein, The Conduct of Hostilities, p. 223. In my opinion, his argument that there is no other method of warfare that can capture defended town (ibid., p. 222) does not, alone, justify civilian suffering. But a utopian prohibition also does also not fulfil its purpose. Kraska, para. 21.

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b) Naval Blockades In this subparagraph, I first define the term ‘naval blockade’ and outline the relevant conditions for a formally binding naval blockade. In a second step, I describe the legal situation relating to naval blockades and highlight its uncertainties. Formal Requirements for a Naval Blockade The term ‘blockade’ was traditionally used in naval warfare to describe a belligerent operation designed to prevent vessels and/or aircrafts of all states, enemy and neutral, from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation (so called ‘naval blockade’).303 Israel, for example, has enforced a naval blockade against the Gaza Strip, implemented in the course of its armed conflict with Hamas.304 This naval blockade is part of a comprehensive closure regime and has disproportionate effects on the civilian population of Gaza.305 The law of naval blockade is laid down in the unratified London Declaration concerning the Laws of Naval War of 1909 (London Declaration).306 Even though this declaration never entered into force, it represents customary law.307 The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Naval Warfare Manual)308 is the most widely accepted restatement of the rules of naval warfare, and represents an ‘agreement as to the present content of customary law’.309 The London Declaration requires strict legal conditions to impose a formally binding naval blockade: A naval blockade must be declared and notified to all states in order to be binding (i).310 It must also be effective (ii),311 303 304 305 306 307 308 309 310 311

See von Heinegg, Blockade, para. 1; von Heinegg, The Law of Armed Conflict at Sea, para. 1051. The legality of this maritime blockade is examined in-depth by Guilfoyle. Guilfoyle, p. 1. The effects of the blockade on the civilian population of Gaza were described in Part A (on pp. 71f.). The London Declaration was signed by only ten countries, on 26 February 1909, and was never ratified (Sandoz/Swinarski/Zimmermann, para. 4796 [FN 8]). Sandoz/Swinarski/Zimmermann, para. 4796 (FN 8). The San Remo Naval Warfare Manual is a non-binding collection of available law, adopted in June 1994, imprinted in IRRC, No. 309, 1995. Doswald-Beck, para. 2. Arts. 8-9, 11, 16 London Declaration. See also arts. 93-94 San Remo Naval Warfare Manual. For details, see von Heinegg, Blockade, paras. 28-32. The principle of effective blockade was incorporated in para. 4 of the 1856 Declaration of Paris (Declaration Respecting Maritime Law, Paris, 16 April 1856), and in art. 2 of the

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and enforced (iii).312 A formally declared naval blockade always directs military force against the enemy’s coastline or ports313 and is traditionally recognised to apply only in IACs.314 Legal scholars disagree over whether these criteria also apply during NIAC.315 The ICRC Commentary suggests the formal concept of a blockade be applied to NIAC only by analogy, under certain factual circumstances.316 There is no need for a discussion of the underlying theory here, since it primarily deals with questions irrelevant for the scope of this analysis, such as the imposition of a blockade as an act of war and the recognition of insurgents as legitimate belligerents.317 Arts. 14 and 18 APII remain the main provisions applicable to civilian starvation in NIAC. Obscure Legal Situation The legal status of naval blockades is uncertain. Art. 23 GCIV applies to naval blockades, since it was specifically intended to regulate blockades set up by the great maritime powers.318 Art. 49 (3) API was the site of considerable disagreement over whether art. 54 API applies during naval blockade: Art. 49 (3) API indicates that the articles in Section I of Part IV API were not intended to change the law of naval blockades, so art. 54 API would arguably not replace the recognised rules on naval blockades.319 The question of the applicability of art. 54 API to naval blockades has not yet been clarified, and the debate

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1909 London Declaration. See also arts. 95-96 of the San Remo Naval Warfare Manual. For details, see von Heinegg, Blockade, paras. 33-37. Enforcement would require that a ship be prevented from entering the port (arts. 9798 San Remo Naval Warfare Manual). This implies also an impartial application of the blockade, without regard to the nationality of the ships (art. 5 London Declaration). Neutral ships should have an opportunity to pass the blockade (arts. 99-100 San Remo Naval Warfare Manual). See also Ronzitti, para. 18.  Von Heinegg, Blockade, para. 1. Ibid., paras. 5 and 25. This is also clear because the San Remo Naval Warfare Manual implicitly applies only to IACs at sea (see Guilfoyle, p. 9). See, pars pro toto, Guilfoyle, pp. 21-24; Heller. Sandoz/Swinarski/Zimmermann, para. 4796, FN 8. Proclaiming a blockade is an assertion of belligerent status, so the law of IACs may be applied (Sandoz/Swinarski/Zimmermann, para. 4345; Sivakumaran, p. 18; Moir, pp. 1621; US Supreme Court, Prize Cases [1862] 67 US 635, para. 8). Guilfoyle says, ‘it is doubtful, that the doctrine survived the nineteenth century’ (Guilfoyle, p. 22). Pictet, p. 181. The Committee III Report makes this clear (O.R Vol. XV, p. 279, CDDH/215/Rev. l, para. 73; O.R Vol. XV, p. 349, CDDH/III/264/Rev. l). See also Sandoz/Swinarski/Zimmermann, paras. 1895, 2114, 4796 (FN 8); Bothe/Partsch/Solf, p. 338; Rosenblad, International Humanitarian Law, p. 121.

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is on-going.320 Relevant state practice is also ambiguous.321 Art. 49 (3) API expressly applies to ‘sea warfare which may affect the civilian population […] on land’,322 which I argue implies that art. 54 API does modify the rules governing naval blockade.323 In any case, these provisions on relief are part of Section II of Part IV, and do modify the law as it relates to blockade and contraband: These provisions expand the categories of supplies that cannot be considered contraband and enlarge the class of persons for whom relief is intended. They thus have an indirect impact on the prohibition of starvation for the law of naval warfare.324 Art. 70 API requires the blockading party to provide for and to permit free passage for objects essential to the survival of the civilian population, if the establishment of a blockade reduces essential supplies to a level of inadequacy.325 However, the British and the French encumbered art. 70 API with reservations, and declared that art. 70 API ‘does not affect the existing rules of naval warfare regarding naval blockade […]’.326 But the new French IHL Manual, does acknowledge that art. 70 API mandates that free passage for relief supplies essential to the survival of the civilian population be granted during blockades.327

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Approving this position are, inter alia, Sandoz/Swinarski/Zimmermann, paras. 2092, 2114; Dinstein, The Conduct of Hostilities, p. 225. On the other hand, for instance, Von Heineg classifies this argument as ‘untenable’ and claims art. 54 API applies to naval blockades pursuant to art. 49 (3) API, if they ‘may affect the civilian population, individual civilians, or civilian objects on land’ (von Heinegg, The Law of Armed Conflict at Sea, para. 1051 [5]). Kaufmann holds a similar view (ead., Hunger als Rechtsproblem, pp. 207-210) and considers the statement of the Rapporteur of Committee III a mistake (ibid., p. 219). For an in-depth analysis, see Drew; Jones. The Swedish IHL outlines the missing consensus (Swedish Ministry of Defence, Manual on International Humanitarian Law in Armed Conflict, Stockholm January 1991, Section 3.2.1.5, pp. 59-60). An overview on the different views provides Drew, pp. 75-78. Art. 49 (3), first sentence API. See also, inter alia, Guilfoyle, p. 30. See also Bothe/Partsch/Solf, p. 338; Kraska, para. 22. Von Heinegg, The Law of Armed Conflict at Sea, para. 1051 (5). Declaration of 2 July 2002 by the UK, para. p; Declaration of 11 April 2001 by France, para. 17 (both available online at www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_ viewStates=XPages_NORMStatesParties&xp_treatySelected=470). Manuel de Droit des Conflits Armés, Ministère de la Défense, Secrétariat Général pour l’administration Manuel de Droit des conflits armés, p. 13, available at www.defense. gouv.fr/sga/le-sga-en-action/droit-et-defense/droit-des-conflits-armes/droit-des-conflits-armes. For details, see Gaudreau, pp. 21-22 of the pdf version.

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The present state of the customary law relating to naval blockades is similarly uncertain.328 Both the London Declaration and the San Remo Naval Warfare Manual are considered to represent customary law.329 Under the London Declaration, foodstuffs are treated as articles ‘susceptible of use in war as well as for purposes of peace’ (so-called conditional contraband of war).330 They may only be captured ‘if it is shown to be destined for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress’.331 But the distinction between absolute and conditional contraband of war disappeared shortly after the adoption of the London Declaration (though, not its ratification by states), and almost all articles destined for the enemy were treated as contraband of war. This was illustrated by state practice in both world wars.332 The San Remo Manual prohibits a blockade if ‘it has the sole purpose of starving the civilian population or denying it other objects essential for its survival’,333 and requires the blockading power to allow relief shipments through if the blockade’s secondary effect would be to cause shortages of food or other essential supplies in the civilian population.334 Doswald-Beck, the editor of the San Remo Manual, explains that these provisions reflect the rules of API; they prohibit starving the civilian population and stipulate provisions of relief supplies that are ‘generally seen as having become an established part of international customary law’.335 The general principles of proportionality and distinction are also part of customary IHL, and prohibit 328

329 330 331 332 333

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Sandoz/Swinarski/Zimmermann, paras. 1896, 2093; van Dongen, p. 215. See CDDH, O.R. Vol. XV, p. 279, CDDH/215/Rev.1, para. 73. For details, see Rosenblad, International Humanitarian Law, pp. 121-124; Fraunces, pp. 893-918. See p. 231. Art. 24 (1) London Declaration. Art. 33 London Declaration. Rosenblad, International Humanitarian Law, p. 123. Art. 102 (a) San Remo Naval Warfare Manual. Guilfoyle criticises the requirement that starvation must be the ‘sole purpose’ of the blockade in order to be prohibited (Guilfoyle, p. 30). Art. 103 of the San Remo Naval Warfare Manual. The obligation to authorise passage is, nevertheless, subject to the conditions in art. 103 of the San Remo Naval Warfare Manual. See von Heinegg, Blockade, paras. 50-51. The acknowledgement and acceptance of the rules of the San Remo Naval Warfare Manual are described in Drew, pp. 78-82; and Guilfoyle, p. 25. Doswald-Beck, para. 3. The Australian and Canadian IHL manuals, for instance, reproduce that excerpt from the San Remo Manual word for word (Australian Defence Force Manual [1994], para. 666; Canada’s The Law of Armed Conflicts at the Operational and

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excessive civilian suffering despite anticipated military advantage; they also prohibit naval blockades intended to starve civilians.336 There is still debate over the relationship of these provisions to relief actions when the effectiveness of a blockade is at stake. Rosenblad believes that a realistic solution to this dilemma may only be found after ‘a fresh look into the aim of a [naval] blockade as well as the rights and duties of the blockading Power’.337 The rules relating to blockades require clarification; and the traditional law of naval warfare needs revision.338 The drafters of the San Remo Manual were alarmed at the uncertainty in the law of naval warfare, but ‘decided [precisely for the reason of the existing incertitude] that it was premature to embark on diplomatic negotiations to draft a treaty on the subject’.339 Thus, I strongly suggest that the next revision will address the particular need to clarify the law of naval blockade.340 Throughout my analysis of IHL, I have shown that starvation is often used as a method of warfare. My examination of the existing provisions that address deliberate starvation of the civilian population suggests that the civilian population may not be entirely protected from starving by prohibiting the tactic. It is therefore essential that civilian populations receive relief when they require it. I thus examine the relevant obligations to prevent starvation foreseen by IHL (3.2). 3.2 Humanitarian Relief to Civilians During armed conflict, access to humanitarian assistance is often deliberately impeded as a tactic of warfare. In time of conflict, when foodstuffs are already scarce, impeding their delivery worsens conditions for civilians. In Somalia, for example, during the famine that began in 2010, the Al-Shabaab

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339 340

Tactical Levels [1999], para. 68). A similar provision contain the German, Argentine, New Zealand and Dutch military manuals (see Gaudreau, p. 22 of the pdf version). Accordingly, art. 102 (b) San Remo Naval Warfare Manual prohibits blockades with a disproportionate effect on the civilian population. Rosenblad, International Humanitarian Law, p. 119 (FN 340). Doswald-Beck assesses a ‘troubling degree of uncertainty as to the content of contemporary international law applicable to armed conflicts at sea’ (Doswald-Beck, para. 1). Specific law of naval warfare was last codified in the 1907 Hague Conventions (VI-XI, XIII) and GCII. For details on the relevant conventions, see Ronzitti, para. 1. Doswald-Beck, para. 2. Similarly, Sandoz/Swinarski/Zimmermann, paras. 1896, 2093; van Dongen, p. 215.

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rebels refused to allow international food aid to be distributed.341 The regional Al-Shabaab leader in late 2010 warned the hungry population of Galguduud (Central Somalia) that, they ‘can eat anything except food aid.’342 In Somalia, international humanitarian assistance was a popular target of attack, as were deliveries of food supplies by national NGOs or non-state actors.343 The AlShabaab rebels also assaulted local aid offices because they were believed to have Christian affiliations or US funding.344 How does IHL counter these harsh realities of war? IHL is a compromise between military requirements and humanitarian considerations.345 This compromise is particularly apparent in the rules on siege and blockades.346 Incidental starvation of civilians as a result of legal military operations is not prohibited. The general prohibition against civilian starvation allows exceptions and even permits, under some circumstances, extensive devastation of indispensable objects. Humanitarian assistance is therefore crucial to balance the imperatives of strategic military actions that harm civilians and to remedy civilian suffering.347 It is important that IHL ensures full and unimpeded access to humanitarian assistance and prevents raids against humanitarian relief personnel.348

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343 344 345 346

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Report of the Monitoring Group on Somalia and Eritrea pursuant to SC Res. 1916 (2010), 18 July 2011, UN Doc. S/2011/433, paras. 204ff. Interview with UN agency official, 25 January 2011 (see Report of the Monitoring Group on Somalia and Eritrea pursuant to SC Res. 1916 [2010], 18 July 2011, UN Doc. S/2011/433, para. 212). See, inter alia, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, para. 19. Report of the Monitoring Group on Somalia and Eritrea pursuant to SC Res. 1916 (2010), 18 July 2011, UN Doc. S/2011/433, para. 204. See, inter alia, Macalister-Smith, Protection of the Civilian Population, p. 441; O’Connell, para. 132. IHL, for instance, does protect civilians in occupied territories more assertively than it does civilians caught in sieges and blockades (see arts. 55, 59ff. GCIV; art. 69 API and already art. 43 Hague Convention IV). The different levels of protection reflect both the inevitability of siege warfare, and the fact it is not a military necessity to starve a population of civilians in an occupied area (Marcus, p. 267). See also Allen Ch., pp. 68-69; Mourey. The various ways that humanitarian aid is impeded in practice have already been outlined (pp. 86ff.). The Handbook on the Normative Framework of Humanitarian Access in Situations of Armed conflict and the corresponding Field Manual by the FDFA, 2011, provide a good overview of humanitarian access in armed conflict (available at www. eda.admin.ch/eda/en/home/doc/publi/phumig.html).

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In this section, I first outline the relevant provisions of the 1949 GCIV and the 1977 APs governing humanitarian relief to civilians. In a next step, I assess whether these outlined rules are nowadays recognised as customary international law. Art. 23 GCIV Art. 23 GCIV primarily refers to relations between states engaged in an economic blockade.349 This article was designed to regulate blockades in maritime warfare, but may also apply to sieges in land warfare.350 Art. 23 (1) GCIV designates a right to free passage for certain consignments that may not be regarded as war contraband.351 Free passage is explicitly provided for consignments intended exclusively for the civilian population of another contracting party, that is civilians of nationalities other than the blockader, including enemy civilians.352 If art. 23 GCIV was intended to regulate only consignments on their way to other contracting states,353 enemy civilians situated in the belligerent state’s own territory would not be covered by the provision. But art. 23 GCIV belongs to Part II of GCIV, which protects the whole population regardless of its nationality, and includes a belligerents’ own nationals.354 The ICRC Commentary indicates the general scope of the principle of the free passage of the consignments mentioned in art. 23 (1) GCIV: ‘[T]he principle of free passage applies to any consignment sent on any grounds whatever within the meaning of this Article’.355 Paras. 2-4 of art. 23 GCIV allow the blockading power dangerously wide discretion.356 The original, stronger draft proposed by the ICRC was weakened in

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351 352 353 354 355 356

Pictet, pp. 178-179. Pictet, p. 181; Dinstein, Siege Warfare and The Starvation of Civilians, p. 148. See also the statement of the delegate of the Soviet Union who pointed out, during the Diplomatic Conference, that economic blockades were carried out not only by ‘the great maritime Powers’, but also the ‘great territorial Powers’ (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section A, Federal Political Department, Berne, p. 763). Pictet, p. 179. Art. 23 (1) GCIV. See Pictet, p. 181; Dinstein, Siege Warfare and The Starvation of Civilians, p. 147. The wording of art. 23 (1) GCIV and the corresponding ICRC-Commentary (Pictet, p. 179) might give that impression. Art. 13 GCIV. See Pictet, p. 118. Pictet, p. 181. Also, Fisher, p. 350. Rosenblad, Starvation as a Method, p. 262; Kaufmann, Hunger als Rechtsproblem, p. 182.

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the Diplomatic Conference so it would be approved by the naval powers.357 No definite obligation remained, only ‘a clearly worded moral obligation for the Contracting Parties to authorize the free passage of such shipments’358 (the consignments listed in art. 23 [1] GCIV). The obligation of a belligerent party is subject to the conditions of art. 23 (2) GCIV: The right to free passage is only valid if the blockading power is satisfied that the relevant consignments will not jeopardise the blockade.359 Paras. 3-4 of art. 23 GCIV allow the blockading power to supervise the distribution and make technical arrangements for the relief. Art. 23 GCIV places an obligation on the blockading power, but does not regulate denial of access to humanitarian assistance by the receiving state.360 Finally, art. 23 GCIV leaves victims of NIAC without protection, since it is only applicable in IAC.361 The general obligation of humane treatment pursuant to common art. 3 GCs could be interpreted as obliging the belligerent parties to allow free passage of foodstuffs. Despite the broad language of common art. 3 GCs, however, it is unlikely that the drafting parties intended to impose greater obligations on the parties to a NIAC than art. 23 GCIV imposes on parties to an IAC.362 Common art. 3 GCs does allow an impartial humanitarian body, like the ICRC, to ‘offer its services to the parties to the conflict’.363 Art. 23 GCIV does not sufficiently protect the civilian population and, in Rosenblad’s words, leaves a ‘distressing lacunae’.364 The protection GCIV of-

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See, for instance, the proposed amendment to draft art. 20 by the USA of 30 April 1949 (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 3, Federal Political Department, Berne, p. 113). Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 3, Federal Political Department, Berne, p.  103 (on art. 20 Draft GCIV). The Soviet Union strongly disapproved of watering down the obligation (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, Section A, Federal Political Department, Berne, p. 763). Rosenblad, International Humanitarian Law, p. 113. Kaufmann, Hunger als Rechtsproblem, p. 183. Rosenblad, International Humanitarian Law, p. 114. Mudge, p. 254. Such a wide interpretation is at odds with the restrained attitude of the contracting states at that time. See Pictet, pp. 34, 38-40; Rosenblad, International Humanitarian Law, pp. 114-115 (FN 326); critically Kaufmann, Hunger als Rechtsproblem, pp. 192-193. Common art. 3 GCs. For details, see Pejic, p. 1105. Rosenblad, Starvation as a Method, p. 261. See also Provost, p. 593 (critically, he declared the normative content of art. 23 GCIV to be ‘minimal’).

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fers to the civilian population during sieges and blockades is most unsatisfactory. New provisions were – and still are – urgently needed.365 Art. 70 API and Art. 18 (2) APII Art. 70 API regulates relief actions in favour of the entire civilian population during IAC.366 This broad protection, which also covers territory that is not occupied, is a success compared to the regime of GCIV.367 Its protection applies to ‘the civilian population of any territory under the control of a Party to the conflict, other than occupied territory’.368 Art. 70 (1) API stipulates that as soon as the civilian population is not adequately provided with the supplies essential for survival, ‘relief actions shall be undertaken’.369 The obligation is addressed to the three parties concerned: the party that provides relief; the party that grants transit; and, the party that receives relief.370 However, relief actions are subject to the consent of the parties concerned.371 The requirement of consent was added to the Draft APs during the Diplomatic Conference, because the state representatives insisted on maintaining their national sovereignty.372 This precondition balances the interests of the civilian population for relief, and the sovereign interests of the receiving state.373 The state representatives did not intend to grant affected parties absolute freedom to refuse their agreement.374 A state may only refuse an agreement when the conditions in art. 70 (1) API are not met: that is to say, when relief is not necessary, or when the relief actions are not purely humani365 366 367 368

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Rosenblad, Starvation as a Method, p. 262. See art. 68 API. Also, Provost, p. 612; Rosenblad, International Humanitarian Law, p. 119. Art. 70 (1) API applies to the whole national territory of a belligerent state that is not occupied (and therefore not covered by art. 69 API). For details, see Sandoz/Swinarski/ Zimmermann, paras. 2792-2793. Art. 69 API and art. 55 GCIV are relevant to determine the scope of supplies essential for survival. For details, see Sandoz/Swinarski/Zimmermann, paras. 2779-2781. Bothe/Partsch/Solf, p. 433; Sandoz/Swinarski/Zimmermann, para. 2806; Kaufmann, Hunger als Rechtsproblem, p. 203; Allen Ch., p. 71. Art. 70 (1) API. See art. 62 (1) of Draft API of 1973 and art. 33 (1) Draft APII of 1973 (ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Geneva 1973, pp. 78, 165). Schwendimann, p. 998; Macalister-Smith, Protection of the Civilian Population, p. 441; Spieker, p. 13. See also Allen Ch., pp. 69, 74 (he explains that the length and the complexity of art. 70 API shows the difficulty in shaping a regime). See the relevant deliberations during the Diplomatic Conference (CDDH, O.R. Vol. XII, p. 336, CDDH/II/SR.87, paras. 26-31). Marcus still strongly criticises the ambiguity in the obligation and the confusing language of art. 70 API (Marcus, p. 268).

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tarian, impartial, and non-discriminatory.375 Since civilian starvation is a prohibited method of warfare, arbitrarily withholding consent to humanitarian relief of a starving population is also prohibited: The ICRC Commentary makes clear that provisions on humanitarian relief should be read in conjunction with art. 54 API.376 Para. 2 of art. 70 API requires the parties to ‘allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel […], even if such assistance is destined for the civilian population of the adverse Party’.377 Para. 3 completes this obligation and imposes conditions and limitations. Para. 3 (c) prohibits states, inter alia, from diverting relief consignments from the purpose for which they are intended, and from delaying their forwarding. Derogation is only permitted ‘in cases of urgent necessity in the interest of the civilian population concerned’.378 Para. 4 obliges the parties to the conflict to actively protect relief consignments and to facilitate their rapid distribution.379 Art. 71 API regulates the personnel who participates in relief actions.380 Relief personnel must be respected, protected, and assisted ‘to the fullest extent practicable’.381 A compromise was more difficult to reach in the case of NIAC. Art. 18 APII was one of the most hotly debated articles during the Diplomatic Conference.382 Relief was a touchstone of APII and was often equated with foreign

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Bothe/Partsch/Solf, p. 435. For details on the specific conditions that relief actions must observe, see Sandoz/Swinarski/Zimmermann, paras. 2797-2802; Allen Ch., pp.  70-71; Kaufmann, Hunger als Rechtsproblem, pp. 204-205. Critically, Dinstein, The Conduct of Hostilities, p. 227. Sandoz/Swinarski/Zimmermann, para. 2808. See also Fisher, p. 350; Provost, p. 612; Pejic, p. 1103. This view is still contested. Van Dongen, for instance, holds that API ‘does not provide for a mandatory approval by receiving governments’ (van Dongen, p. 214). Art. 70 (2) API. Arts. 54 API and 70 (2) API prevail as lex specialis over the suggestion that art. 70 (1) API allows parties to arbitrary refusal to agree (Bothe/Partsch/Solf, pp. 434-435; Allen Ch., p. 72). Art. 70 (3) (c) API. See Schwendimann, p. 1000; Bothe/Partsch/Solf, p. 436; Allen Ch., pp. 73-74. See Sandoz/Swinarski/Zimmermann, paras. 2857-2865. See also art. 70 (5) API on international co-ordination. Protection for relief personnel has not been addressed yet by the GCIV or by the ICRC Draft APs. To fill this gap the Committee II Working Group addressed these protections as they applied to both occupied and non-occupied territories (Allen Ch., p. 75). Art. 71, paras. 2-3 API. For details, see Allen Ch., pp. 74-77; Bothe/Partsch/Solf, pp. 438439. Bothe/Partsch/Solf, p. 694; Kaufmann, Hunger als Rechtsproblem, p. 216.

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intervention.383 The IRCR has long sought satisfactory regulation of humanitarian relief for victims in NIAC,384 but most states were more concerned with preserving their national sovereignty than with protecting relief actions.385 Art. 18 APII, which was finally adopted, only sets out the fundamental principles on which relief actions are based, and does not elaborate on their implementation.386 Art. 18 (2) APII provides that relief actions shall be undertaken subject to the consent of the affected state, in case ‘the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival’. It is striking that art. 18 (2) APII requires only the consent of the government of the affected state, and does not mention other belligerent parties to a NIAC. This distinctive emphasis on national sovereignty raises delicate issues regarding its application in cases in which relief does not pass through territory controlled by the established government, but instead controlled by rebels.387 As does art. 70 (1) API, art. 18 (2) APII implies that a state may only refuse international relief if the relief actions are unnecessary, are not purely humanitarian, or if they are partial or discriminatory.388 Marcus legitimately questions if a concerned party would ever consent to humanitarian relief, if its intention was to starve its own civilian population.389 Arbitrary refusal of consent in circumstances in which lack of relief would lead to starvation also violates both art. 18 (2) APII, and the prohibition against starving civilians as a method of warfare (art. 14 APII).390 383

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Bothe/Partsch/Solf, p. 694. The delicate question of whether humanitarian assistance may amount to a foreign intervention is discussed by the ICJ in its Nicaragua Case (Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. USA], Merits, Judgment, ICJ Reports 1986, p. 124, paras. 242-243). For details on the historical background and the endeavours of the ICRC, see Sandoz/ Swinarski/Zimmermann, paras. 4869-4870; Kaufmann, Hunger als Rechtsproblem, p. 216. Sandoz/Swinarski/Zimmermann, para. 4870. The concerns of some delegations, that APII might generally weaken the well-established principles of international law concerning sovereignty of states and non-interference in internal affairs, are well described, inter alia, by the ICRC representative (CDDH/I/SR.23, para. 66). Sandoz/Swinarski/Zimmermann, para. 4870. Additional regulations on relief were deleted (Bothe/Partsch/Solf, p. 697). Bothe/Partsch/Solf, p. 696; Kaufmann, Hunger als Rechtsproblem, pp. 216-217. Dungel discusses the consequent implications in ibid.; or see Plattner, pp. 249-263. Bothe/Partsch/Solf, p. 696; Sandoz/Swinarski/Zimmermann, paras. 4881-4883; Pejic, p. 1108. Marcus, p. 269. Cf. also Sandoz/Swinarski/Zimmermann, para. 4885; Schwendimann, p. 1001.

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The affected state is primarily responsible for providing and organising relief.391 Art. 18 (1) APII allows and calls upon relief societies (such as the Red Cross and Red Crescent organisations) to assist authorities in their task.392 However, unlike art. 70 API, art. 18 APII does not contain an explicit obligation of the parties to facilitate and co-operate.393 The ICRC Commentary attempts to fill this gap, arguing that once relief actions are accepted, these obligations are implicitly included in the provision that relief actions ‘shall be undertaken’ (art. 18 [2] API).394 It is justifiable to claim that effective access to humanitarian relief is a conditio sine qua non for any relief action.395 Customary International Law Customary international law in both IAC and NIAC also recognises the duty of the parties to allow and facilitate rapid and unimpeded passage of relief.396 Humanitarian access is not generally considered to be merely optional in armed conflicts, and consent to humanitarian relief may not be arbitrarily withheld.397 ‘Arbitrarily’ means, in this context, a party to the conflict does not have a legitimate reason to withhold approval. When the APs were adopted in 1977, there was a wide consensus amongst nations on the general obligation to allow and facilitate food relief during IAC.398 For IHL in NIAC, the provision on relief societies and relief action (art. 18 APII) was newly applied. Strong opposition to the provision was voiced during the Diplomatic Confer391 392 393

394 395 396

397

398

Sandoz/Swinarski/Zimmermann, para. 4871; Rottensteiner, p. 556. Sandoz/Swinarski/Zimmermann, para. 4871; Bothe/Partsch/Solf, p. 695. This requirement was still included in art. 33 of Draft APII, adopted by the Committee II of the Diplomatic Conference (ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Geneva 1973, p. 165; see also art. 33 of the Draft APII, Doc. CDDH/II/398 of 9 June 1976). It was deleted at the last moment in favour of a simplified text (CDDH/427; CDDH/427/Corr.1). See Rosenblad, International Humanitarian Law, p. 120. Sandoz/Swinarski/Zimmermann, para. 4888. See also Fisher, p. 351. Art. 18 (2) APII was adopted by consensus (CDDH/435; CDDH/440). Cf. the argumentation by the ICRC in its Customary Study, Rule 55. See ICRC Customary Study, Rule 55, on Access for Humanitarian Relief to Civilians in Need, that demonstrates the relevant practice by states that are not party to the APs. Cf. also SC Res. 1261, UN Doc. No. S/RES/1261, 1999, para. 11; Fisher, p. 350. See in favour of this position: ICRC Customary Study, Rule 55; Provost, pp. 634-638; Fisher, p. 350 (he indicates that the debate over this point continues). For a different opinion, see, inter alia, van Dongen, p. 214. Art. 70 API was adopted by consensus at every stage of the Diplomatic Conference, as was art. 54 API (see Provost, p. 636). An in-depth analysis of the priorities the observed consensus reflects, and the relevant background, is provided by Allen Ch., pp. 79-85.

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ence by many countries, and particularly by developing countries.399 Art. 18 APII was finally accepted by both sides as a compromise solution.400 Art. 18 APII retained only the fundamental principles of humanity and military necessity, which are today generally accepted in NIAC as well.401 The irritation and indignation of the international community towards states that deny humanitarian assistance to their own population in the face of clear need indicate a general acceptance of a prohibition on impeding humanitarian relief.402 The response of the international community to the blockade against humanitarian assistance in Darfur was particularly clear. The SC repeatedly expressed, ‘deep concern for the security of humanitarian aid workers and their access to populations in need, condemning those parties to the conflict who have failed to ensure the full, safe and unhindered access of relief personnel to all those in need in Darfur […].’403 The SC also deployed the peacekeeping missions to Darfur, inter alia, to facilitate humanitarian aid.404 Pursuant to art. 7 Rome Statute, extermination may constitute a crime against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.405 ‘Extermination’ includes ‘the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’.406 Art. 8 (2) (b) (xxv) Rome Statute also provides individual criminal liability for ‘intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.407 399 400 401

402 403 404 405 406 407

Cassese, The Geneva Protocols of 1977, pp. 109-110. CDDH/435; CDDH/440. See Rosenblad, International Humanitarian Law, p. 120. Provost indicates that art. 70 API ‘comports with both the humanity and military necessity aspects of humanitarian law’ (Provost, p. 635). This is equally valid for art. 18 APII. In NIAC, the basic customary principles of military necessity, humanity, distinction and proportionality are recognised. The ICRC Customary Study gives many examples in which contrary practice was condemned by the international community in both IACs and NIACs (ibid., Rule 55). See, inter alia, Res. 1769 (2007) adopted by the SC at its 5727th meeting, on 31 July 2007, UN Doc. S/RES/1769 (2007), preambular para. 13. In 2005, the SC also transferred the situation in Darfur to the ICC (see above on p. 178. FN 69). Yihdego gives an overview of international response in Yihdego, pp. 62-67. Art. 7 (1) (b) Rome Statute. [Emphasis added] Art. 7 (2) (b) Rome Statute. This war crime must be committed in IAC (see explicitly art. 8 [2] [b] Rome Statute). Pejic argues that this act also constitutes a war crime in NIAC, under customary inter-

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It is an established rule of customary international law that the parties to the conflict must generally ensure the freedom of movement of authorised humanitarian relief personnel.408 Any restriction must be justified by the imperative of military necessity.409 Attacks against personnel, installations, and material used in a humanitarian assistance mission may constitute a war crime in both IAC and NIAC.410

408

409 410

national law (Pejic, p. 1100). For an in-depth analysis of the criminal liability for denying humanitarian assistance, see Rottensteiner, pp. 555-582. Allen explains that even though there was no earlier codification of such a regime, the protections for relief personnel did not reflect the new controversial law. Instead, they represented a ‘restatement of those concerns and expectations held in 1977’ (Allen Ch., pp. 76-77). See ICRC Customary Study, Rule 56. See also Fisher, p. 351. Arts. 8 (2) (b) (iii) and 8 (2) (e) (iii) Rome Statute. See Pejic, pp. 1104, 1106. See in this regard also arts. 8 (2) (b) (vii), 8 (2) (b) (viii) and 8 (2) (e) (viii) Rome Statute.

PART C Conclusion

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In Part A and B, I outlined the frameworks in international human rights law (HRL) and international humanitarian law (IHL) that prohibit deliberate starvation of a state’s own population. IHL and HRL both protect the food security of the population. Yet, these two bodies of rules provide different protection because they are applied in different circumstances. In this third Part, I compare and evaluate the distinct scope of protection provided by HRL and IHL, and consider their specific features (I). I then examine the relationship between IHL and HRL and seek to harmonise their different regimes (II). Finally, I base suggestions for change on the arguments I have made throughout the book (III).

I.

Two Frameworks as a Starting Position

In Part A and B, I showed that both IHL and HRL protect the population from starvation. The rules that govern them have much in common. Both bodies share the same aim: protecting the individual.1 The traditional divide between IHL and HRL has narrowed considerably, in large measure due to the development of IHL in NIACs. IHL and HRL today provide many food-related regulations intended to ensure food security within the territory of a state. The specific characteristics of IHL and HRL are here recapped, in order to highlight the different protections they offer against deliberate starvation.

Human Rights Law HRL regulates the legal relationship between a state and its citizens, and regulates conduct between a state and the individuals within its national territory. HRL protects all human beings within that territory against deliberate starvation. Art. 11 ICESCR guarantees ‘the right of everyone to an adequate standard of living’2 and ‘the fundamental right of everyone to be free from hunger’.3 Though HRL does not directly address the issue of deliberate starvation, the framework of human rights implies that deliberate starvation is prohibited. Arts. 11 and 2 ICESCR directly impose obligations on the state parties. The right to food in general is not the right to be fed, but the right to feed oneself. Food must be available and accessible, and the state is obligated to provide food if the population is unable to feed itself. Human rights bodies have deduced three concrete obligations (the obligation to respect, to protect and to fulfil) and have formulated definite standards and measures that states should adopt. States are obliged to respect, protect and fulfil the right to food and to ensure broad food security. These obligations apply without discrimination, for the benefit of all individuals within the state’s national territory, and subject to its jurisdiction.4 If a state arbitrarily deprives people of food, 1 2 3 4

Cf. also Kleffner, para. 251 (1). [Emphasis added] Art. 11 (1) ICESCR. [Emphasis added] Art. 11 (2) ICESCR. Art. 2 ICESCR; art. 2 ICCPR; art. 1 ECHR. Cf. also, ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, p. 180, para. 112.

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putting them at risk of death by hunger, it violates the right to life.5 If a state deliberately starves its population, it has not fulfilled its human rights obligations. However, the efficiency of the obligations is severely weakened insofar as art. 2 (1) ICESCR requires only progressive realisation of obligations ‘by all appropriate means’. The standard of progressive realisation impedes effective monitoring of compliance and the identification of offences, but states still have immediate obligations to ensure the right to be free from hunger, and must provide a minimum essential level of subsistence. This minimal standard connotes the core content of the right to food and is directly linked to the right to life. In addition, prohibition against discrimination is immediately effective, and the state has an immediate negative duty to abstain from any action that could create famine.

International Humanitarian Law IHL is concerned with the abnormal conditions of armed conflict, and is intended to regulate the relationship between armed actors and victims of armed conflicts, and between armed actors.6 Despite the orientation of IHL, some regulations do protect the domestic population against deliberate starvation within a state’s own territory. The internal affairs of a state are mainly regulated by IHL which governs the conduct of NIAC, but the law of IAC also protects the domestic population in some of its provisions. In contrast to the rights and obligations set out in HRL, IHL offers specific prohibitions against deliberate starvation. IHL is a compromise between humanity and military objectives, and these prohibitions only protect certain categories of individuals.7 There are some incisive limits to the protection provided by IHL. IHL does not protect the entire population against starvation; it only bans deliberate starvation tactics not justified by military necessity: Fighters may be legally attacked if militarily necessary, and those means of attack may include starvation.8 In principle, IHL thus does not protect 5 6 7 8

Art. 6 (1) ICCPR. Cf. also Kleffner, para. 251 (1). See also Macalister-Smith, Protection of the Civilian Population, p. 441; O’Connell, para. 132. Means of subsistence intended only for combatants may be legitimately destroyed; blockades against military fortresses exclusively inhabited by combatants are also generally permitted. But situations like this are rare, and the civilian usually suffers when these kinds of military operations are carried out.

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fighters from deliberate starvation,9 and instead protects civilians, depending on their status.10 But also civilians are not completely protected against starvation by IHL. The prohibition against deliberate starvation of the civilian population as a method of warfare is only a general principle, based on the fundamental legal distinction IHL makes between fighters and civilians, and between military objectives and civilian objects. IHL tolerates, as collateral damage during a military operation, the killing of civilians who do not directly participate in armed conflict. The prohibition of destroying objects indispensable to civilian survival is not absolute either. Based on the principle of military necessity, paras. 3 and 5 of art. 54 API allow the destruction, under certain circumstances, of these civilian objects. The framework of IHL seeks to mitigate the effects of conflict by making rules about the provision of humanitarian relief. Yet, the duties of the states pursuant to GCIV and the APs do not ensure that civilians affected by armed conflict will be food secure within the national territory of a state.

Common Base HRL and IHL overlap in their efforts to protect civilians from deliberate starvation, even though they take different approaches to accomplish that goal. IHL outlines prohibitions against deliberate starvation, which a state needs to respect during hostilities. IHL offers no direct legal basis for a state’s positive duty to ensure food security.11 HRL, on the other hand, does not address deliberate starvation explicitly, but imposes obligations on the state to respect, protect and fulfil the right to food. HRL obligations create an indirect prohibition of deliberate starvation and ensure the population a minimum level of food. The universal concept of HRL is fundamentally different from the restricted scope of civilian protection in IHL: There is a marked difference between the comprehensive protection guaranteed by the right to food, and a conditional protection against deliberate starvation that depends on the status of an individual. Even for civilians, the protection provided in IHL is not abso9 10

11

They still represent a legitimate target only as long as they participate in the hostilities. To be precise, this conclusion is only correct within the scope of this book. IHL also protects other categories of individuals (such as prisoners of war). If civilian status is unclear, the person is to be considered a civilian (art. 50 [1] API). See the obligation to respect IHL in common art. 1 GCs; art. 1(1) API. For details, see ICRC Customary Study, Rule 139.

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lute: Limitations are imposed by ‘military necessity’. These may, on the surface, resemble the limitations in HRL, since art. 4 ICESCR allows limitations ‘for the purpose of promoting the general welfare in a democratic society’. However, art. 4 ICESCR allows these limitations only if they are ‘compatible with the nature of these rights’. In ICESCR, the core content of the right to food (the right to be free from hunger) is not subject to limitations. There is a non-negotiable obligation of the state parties to provide the minimum essential level of food required. I have highlighted this obligation, which is not subject to mere progressive realisation, but imposes an immediate obligation on the states. A rough comparison reveals the human rights standard to be more unyieldingly towards deliberate starvation than IHL. The provisions of both regimes are straightforward in principle and seem to incorporate clear demands (‘right of everyone to be free from hunger’, ‘starvation of civilians as a method of warfare is prohibited’). But my analysis reveals that they are not as simple as they seem: Both systems are very complex and require elaboration. Variable interpretation dangerously weakens the efficiency of provisions in both regimes. Nevertheless, the evident intent behind these regulations sends a strong message to the international community that serves as guidance for interpretation.

II.

Harmonisation

In situations where both IHL and HRL rules apply concurrently, they may both be applicable (1). The two sets of rules must be harmonised, the rules that are pertinent in case of a discrepancy must be determined (2) and evaluated (3).

1

Parallel Application

HRL applies at all times – in times of peace, insecurity and armed conflict. The GA emphasised repeatedly that fundamental human rights continue to apply in situations of armed conflict.1 Similarly, in its Advisory Opinion on Nuclear Weapons, the ICJ confirmed the applicability of CPR in armed conflict.2 The Court reaffirmed its position in the Advisory Opinion on the Legal Consequences of the Construction of a Wall and determined that both CPR and ESCR continue to apply in times of armed conflict.3 Though HRL allows derogation from some human rights in times of public emergency, including during an armed conflict,4 the core content of the right to food (the right to be free from hunger) and the right to life are non-derogable. The right to adequate food also remains applicable, but the allowed adequacy standard may

1

2 3

4

See, for instance, GA Res. 2444 (XXII) concerning ‘Respect for Human Rights in Armed Conflicts’, U.N. Doc. A/7218 (1968); GA Res. 2675 (XXV), U.N. Doc. A/8028 (1970), para. 1. See also the SC, which stated in its Res. 1296 (2000) that ‘committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security […]’ (S/RES/1296 [2000], para. 5). The ICRC Customary Study, Introduction to Fundamental Guarantees, Chapter 32, offers an overview on the international documents in favour of the continued applicability of HRL during armed conflict. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 240, para. 25. ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, pp. 136ff., p. 178, para. 106. See also ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, pp. 168ff., pp. 242243, para. 216. Similarly, San Remo NIAC Manual, p. 3. See, inter alia, art. 4 (1) ICCPR. The ICESCR does not contain a derogation clause, but arts. 2 (1) and 4 ICESCR allow flexibility to counter emergency situations.

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be lowered legitimately if resources are scarce or if military forces operate under time constraints during an armed conflict.5 IHL, on the other hand, applies only to armed conflicts (if the threshold of an armed conflict is reached). IHL applies from the initiation of an armed conflict, and extends beyond the cessation of hostilities, until peace is restored or peaceful settlements are achieved.6 Due to its nature and intent, IHL does not allow for a derogation from its provisions during an emergency. It is specifically designed to address the inherently extraordinary situation of an armed conflict.7 Thus, both HRL and IHL may apply simultaneously to situations of armed conflict. The right to food and the right to life continue to protect food security in these exceptional circumstances. Accordingly, the Committee on ESCR rejected Israel’s assertion that HRL does not apply to the events in the occupied territories, West Bank and Gaza Strip, and emphasised that, ‘[…] even during armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights as part of the minimum standards of human rights are guaranteed under customary international law and are also prescribed by international humanitarian law.’8 The relationship between these two bodies of law must thus be determined, in order to assess the concurrent protection their particular rules offer against deliberate starvation in the context of an armed conflict. An overlap only exists as far as IHL regulates domestic situations of a state, and thus concurs with the provisions of HRL. Within the scope of this book this is a given, since I limited my analysis precisely to starvation in domestic situations, and have only presented the provisions of IHL that regulate this issue. Deliberate starvation that occurs in situations that do not cross the threshold of armed conflict is only covered by HRL.9

5 6 7 8

9

An in-depth analysis on ESCR in armed conflicts is provided in Mottershawa, pp. 449470; see also Ssenyojo, Economic, Social and Cultural Rights, pp. 75-77. Green, pp. 258-259. Cf. Pejic, pp. 1097-1098. Concluding Observations of the Committee on ESCR on Israel, E/C.12/1/Add.69, 31 August 2001, para. 12. See also Palmer Report, paras. 61-62; Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, 27 September 2010, UN Doc A/ HRC/15/21, paras. 68-70. The Martens Clause supports this logical conclusion (see, inter alia, fourth paragraph of the preamble to APII).

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Synergies and Antagonisms10

International law is a system of interlinked and overlapping regimes, which cannot be considered in isolation. The relationship between IHL and HRL is generally characterised as complementary. The HR Committee determined that ‘both spheres of law are complementary, not mutually exclusive’.11 This implies that the provisions of IHL and HRL complete and perfect each other.12 However, the relationship between the provisions of IHL and HRL are only straightforward when these regimes of rules are virtually identical in what they mean by prohibiting deliberate starvation. Difficult questions arise when the rules of the two regimes are inconsistent or even contradictory. The relevant rules must then be harmonised. The ILC emphasised the importance of harmonising different norms of international law. This was why the ILC established a study group in 2002 to solve practical problems with the fragmentation of international law.13 The ILC Study Group elaborated, under the chairmanship of Koskenniemi, practical guidelines to mitigate the fragmentation.14 I seek to harmonise my analysis of IHL and HRL by finding solutions for rules that differ. I examine situations in which IHL and HRL synergise and complement each other (2.1), and then consider situations in which they are contradictory (2.2). The ILC can be summarised thusly: ‘[W]hen several norms bear on a single issue they should, to the extent possible, be interpreted so as

10

11 12 13

14

I apply here a fitting terminology framed by Diggelmann in a different context, since it aptly captures the ambivalent relationship between these two bodies of rules (cf. Diggelmann, Wirtschaftsvölkerrecht und Menschenrechte). HR Committee, General Comment No. 29, para. 3; confirmed in HR Committee, General Comment No. 31, para. 11. See, for details, Kleffner, paras. 252-253; Dinstein, The Conduct of Hostilities, pp. 23-26. Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, established at the fifty-fourth session of the ILC in 2002, see Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/10), Chapter IX.A, paras. 492-494, 511. See the Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International, adopted by the ILC at its fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10, para. 251). The report is printed in Yearbook of the ILC, 2006, Vol. II, Part Two, and is referred to hereafter as ‘ILC, Fragmentation, Conclusions 2006’. For details, see the comprehensive Report of the ILC Study Group, finalised by Martti Koskenniemi, A/ CN.4/L.682, 13 April 2006, (‘ILC, Fragmentation, Report 2006’).

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to give rise to a single set of compatible obligations.’15 Koskenniemi applies the principle of systemic integration, which looks beyond an individual case, and demands that the outcome of a rule be linked to its legal environment.16 International law is not a neutral construct; it is biased by the political objectives of its creators.17 Thus, harmonising the different regimes, each with its own political directives, is necessary to achieving satisfactory over-all protection from starvation during times of conflict. 2.1 Synergies When IHL and HRL form a synergy and complement each other, it is easy to extract a harmonised rule. The ILC Study Group describes these synergies as ‘relationships of interpretation’ and explains that the relevant norms may assist in the interpretation of another norm, inter alia, as a clarification, updating or modification.18 This goes along with the principle of mutual reinforcement applied by the HR Committee: In situations not regulated by IHL, the gaps can be filled by HRL, and vice versa.19 Convergence in the Protection of Civilians Meron observed a general convergence of IHL and HRL. HRL has influenced the provisions of the GCs and APs and has led to parallel protection of many basic human rights.20 This parallelism is most apparent in common art. 3 GCs, which promises minimum humane treatment in all circumstances for those not participating in armed conflicts.21 The ICTY similarly confirmed that the 15 16 17

18 19 20

21

ILC, Fragmentation, Conclusions 2006, para. 4. For details, see ILC, Fragmentation, Report 2006, paras. 37-43. ILC, Fragmentation, Report 2006, para. 480 (referring to art. 31 [3] [c] VCLT). Cf. Koskenniemi, From Apology to Utopia, pp. 16ff. (arguing that international legal arguments serve either as apologies for the primacy of states’ interests, or as utopian claims on behalf of common interests of the world community). ILC, Fragmentation, Conclusions 2006, para. 2. Cf. also, Kleffner, para. 253. This parallelism and convergence is described in detail in Meron, The Humanization of Humanitarian Law, pp. 266-273. See also Barber, Facilitating Humanitarian Assistance, pp. 391-392; ILA-Report on Use of Force 2010, pp. 5-6 (with further references); Kolb, Human Rights, paras. 42-43. An overview on the relevant developments in international law is regularly provided in the Reports on ‘Fundamental Standards of Humanity’ by the UN Secretary-General (see e.g. UN Human Rights Council, Fundamental Standards of Humanity: Report of the Secretary-General, 28 May 2008, A/HRC/8/14, available at: www.refworld.org/docid/484d15732.html). Moore refers to common art. 3 GCs as a miniature human rights treaty for non-derogable human rights in wartime, representing ‘the areas in which IHL and human rights

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guarantee of the human rights to life, dignity and humane treatment also includes the protection of victims of an armed conflict who do not take part in hostilities.22 Similarly, the preamble of APII recalls the basic protection of the human person by human rights instruments, and art. 4 APII elaborates on the protection for the basic human rights for all those not (or no longer) taking part in hostilities. As regards IAC, the analogy to human rights is apparent in art. 27 GCIV that, inter alia, entitles civilians to respect for their person, honour and family rights, and stipulates humane treatment at all times. Art. 75 API also defines fundamental guarantees including the prohibition of murder, torture, corporal punishment, inhumane or degrading treatment or collective punishments. Art. 72 API emphasises that these fundamental guarantees should be applied in addition to other applicable rules of international law that relate to the protection of fundamental human rights during IACs. The parallel application of HRL and IHL is also reflected in art. 49 (4) API.23 The protection of fundamental guarantees during armed conflict for all civilians who do not take a direct part in hostilities is recognised as customary international law.24 Filling the Gaps In this parallel area of protection, it is thus justified to fill gaps in the protection of IHL with HRL standards. I explained in Part B that the regulations provided by GCIV and the APs require the states to allow and facilitate rapid and unimpeded passage of relief, and that consent to humanitarian relief may not be arbitrarily withheld. However, there is no positive obligation in IHL for the state to provide humanitarian relief to a population affected by armed conflict. Nor does IHL entitle the affected population to receive humanitarian relief. In this regard, there is a gap in the humanitarian protection of civilians. HRL, on the other hand, does not contain concrete prohibitions not to hinder or not to arbitrarily reject humanitarian assistance, but imposes posi-

22 23

24

law overlap and mutually reinforce one another’ (see Moore, pp. 60-61). The ICTY confirmed this in ICTY, The Prosecutor v. Delalic Zejnil, Case No. IT-96-21-T, Judgment of 16 November 1998, para. 200. Cf. also, Sandoz/Swinarski/Zimmermann, para. 1901; CDDH, O.R. Vol. XIV, CDDH/III/ SR.18, 12 February 1975, para. 27. Similarly, Hartman held that the provisions of the GCs and APs are most pertinent and noteworthy to specify non-derogable rights that must be absolutely protected in emergencies in addition to the rights specified in art. 4 (2) ICPR (Hartman, p. 119). See the list of the extensive state practices that require respect for human rights during armed conflicts, provided in ICRC Customary Study, Chapter 32 on Fundamental Guarantees.

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tive duties on the states to provide humanitarian assistance.25 Art. 11 ICESCR does not explicitly refer to a right to humanitarian assistance, but implies that states have an obligation to provide food in cases when an individual or a group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal.26 The right to food requires that the affected state must either ensure the minimum essential levels of food itself, or, if it does not have the means, ask the international community for assistance. A state violates its human rights obligations if it is unable to demonstrate that it has made every effort to use all resources at its disposal to meet its obligation to provide sufficient, safe, accessible food.27 Attacks on humanitarian agencies or personnel, or restrictions on humanitarian relief constitute a violation of the right to food, if the affected people have not yet been provided with sufficient food. HRL, particularly art. 11 ICESCR, provides more substantive protection of humanitarian assistance than does IHL. I therefore argue that the unsatisfactory protection provided by IHL may be mitigated by recourse to HRL.28 The state obligation to provide humanitarian assistance is thus also in force in situations of armed conflict.29 This method of harmonisation fits well with art. 31 (3) (c) VCLT, which requires systemic integration of a treaty into the international legal system. Koskenniemi points out that this systemic integration is essential to keeping alive ‘any sense of the common good of humankind’.30 I wholeheartedly support Koskenniemi’s statement, which I think has further implications: The prohibitions of deliberate starvation in art. 54 API and art. 14 APII are not sufficient to protect the population from hunger. Food scarcity in times of war can be caused by the armed forces of a state, but also by non-state actors (e.g. the destruction carried out by the Janjaweed rebels in the armed conflict in Darfur) or even incidentally. Complementary positive duties of states to ensure food security for their population in an armed conflict should therefore be derived from HRL. The population is sufficiently pro25 26 27 28 29

30

For details on the obligation to provide humanitarian assistance, see pp. 81ff. Committee on ESCR, General Comment No. 12, para. 15. Cf., pars pro toto, Committee on ESCR, General Comment No. 3, paras. 10, 13. This view is shared by a number of authors: Barber, Facilitating Humanitarian Assistance, p. 395; Schwendimann, p. 1004; similarly Drew, p. 3. Cf. also Res. 4 (g) (2) of the 26th International Conference of the Red Cross and Red Crescent; UN GA, Humanitarian Assistance to victims of natural disasters and similar emergency situations, GA Res 43/131, UN GAOR, 75th Sess, UN Doc. A/RES/43/131 (8 December 1988); Young, pp. 108-109. ILC, Fragmentation, Report 2006, para. 480.

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tected against prevailing food insecurity in armed conflict only if the states are obliged to respect, protect and fulfil the right to food. HRL is also the appropriate framework to assess the standard of food required for the civilian population in armed conflict. Art. 2 (1) ICESCR and the limitation clause of art. 4 ICESCR are sufficiently flexible tools to account for the possible lack of resources or imposition of time constraints during armed conflict. In these situations, HRL offers more pertinent rules than IHL, and these rules should apply exclusively.31 It could be argued that IHL does intend to protect civilians in an absolute way, and that these specific features of IHL prevail over the human rights standard as lex specialis. Indeed, a total ban of civilian harm during armed conflict would rule out warfare per se. IHL tolerates the killing of civilians who are not directly participating in armed conflict, and under certain conditions considers them collateral damage of a military operation.32 The argument for this interpretation is decisively limited by the prohibition against starvation of civilians as a method of warfare.33 I believe this broad prohibition generally rules out tolerance for civilian starvation as collateral damage. I suggest that this very prohibition can be used to harmonise IHL standards with the positive duties of HRL, based on the argument that regulating starvation in IHL does not preclude applying human rights standards in armed conflict, and that these rules can be harmonised. Prohibiting starvation of civilians as a method of warfare – as the term suggests – only prohibits deliberate starvation as a tactic of warfare. The prohibition does not cover incidental starvation or a prevailing scarcity of food supplies in wartime. Only those tactics that deliberately cause a famine or amplify its effect are banned. However, I argue that when such accidental starvation occurs, states have positive duties comparable to HRL. As soon as a state is aware that military operations have caused civilian starvation (even if not caused deliberately and even if caused by enemy operations), it must provide for humanitarian relief or at least allow foreign relief actions.34 If a 31

32 33 34

Accordingly, the ICJ describes such situations in which one framework is more pertinent as the other as ‘exclusively matters of human rights law’ or vice versa as ‘exclusively matters of international humanitarian law’ (ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004, p. 178, para. 106). The different approaches to protection in IHL and HRL are also described in Meron, The Humanization of Humanitarian Law, p. 240. Art. 54 API; art. 14 APII. This duty to accept relief is logically only valid if the relief actions are humanitarian and impartial. See the conditions in art. 70 (1) API and art. 18 (2) APII.

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state refuses to do so, it makes a deliberate choice to starve the population by omission. The original cause of food insecurity is thus irrelevant. If a state deliberately decides not to take measures to supply the population with objects indispensable for its survival or deliberately rejects relief actions, it violates art. 54 API (in an IAC) or art. 14 APII (in a NIAC). The ICRC lends credence to this view when it points out that deliberate starvation as a method of warfare can also result from an omission.35 When the population is suffering hunger and is deliberately deprived of its sources of food or of supplies, the prohibition of starvation as a method of warfare comes into force. The motive for the deprivation is irrelevant in art. 54 (2) API (‘whatever the motive’); deliberate omission ‘in a way would become a method of combat by default’.36 Art. 54 (2) API aims at broadly protecting the sustenance of the civilian population. Art. 54 (3) API indicates that not even a ‘military necessity’ justification warrants destroying objects indispensable for the survival of the civilian population. This provision absolutely prohibits attacks against items used by both civilians and military personnel (a), and attacks against items that directly support military action, if such destruction has the predictable effect to leave the civilian population with inadequate food (b). The exceptional permission of a defensive scorched earth tactic on a state’s own national territory in art. 54 (5) API does not exclude a possible obligation to provide humanitarian relief. The military objective of a scorched earth tactic is to deny resources to the enemy. Providing humanitarian relief and essential supplies to the state’s own civilian population will not interfere with this mission.37 I conclude that IHL and HRL converge, insofar as they both prohibit deliberate starvation of the (civilian) population by omission, and therefore require the state to assist its civilians if they are unable to feed themselves. HRL offers guidance for assessing the required standard of food, and the details of situations in which a state has a duty to seek international assistance if it cannot meet the needs of its population. The progress of international law towards increased protection of civilians in armed conflict, and the convergence of HRL and IHL in this area support my argument that individuals who do not participate in hostilities should be broadly protected.

35 36 37

See in the context of NIACs: Sandoz/Swinarski/Zimmermann, para. 4800. In the context of IACs, this view is indirectly also supported in ibid., para. 2089. Sandoz/Swinarski/Zimmermann, para. 4800. This tactic is used to stop enemies from invading one’s own territory.

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2.2 Antagonisms I now address situations in which the rules of both IHL and HRL apply simultaneously and contradict each other, and where it is a challenge to harmonise them. The ILC Study Group refers to these antagonisms as ‘relationships of conflict’ and explains that such norms ‘point to incompatible decisions so that a choice must be made between them’.38 The lex specialis principle of international law offers recourse: Priority is to be given to the more specific rule (lex specialis derogat legi generali).39 The ILC has deliberated on this principle in-depth and explained that the lex specialis can either be an application, update, or development of the general rule, or it can be an exception to the general rule.40 I will illustrate the lex specialis principle by examining, in this context, the human right to life in armed conflict. Armed conflicts are distinguished by their goal of weakening and killing members of the enemy armed force; this is precisely the military objective of warfare. In IHL, it is therefore lawful to kill fighters, if it is necessary to achieve victory. This approval, however, clashes with the right to life. Applying the lex specialis principle, IHL is, in the context of an armed conflict, the more specific law and derogates the general human rights standard. It is therefore generally agreed that lawful acts of war are not prohibited by art. 6 ICPCR.41 The ICJ confirmed this argument and made this statement about the scope of the right to life during armed conflicts: In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.42 38 39 40 41

42

ILC, Fragmentation, Conclusions 2006, para. 2. Cf. Kleffner, para. 253. See the detailed analysis on the lex specialis principle in ILC, Fragmentation, Report 2006, paras. 46-222. See the Report of the Secretary-General, Respect for Human Rights in Armed Conflicts, UN Doc. A/8052 (1970), p. 104. For details, see Meron, The Humanization of Humanitarian Law, p. 266. Cf. also art. 2 (2) (a) ECHR. [Emphasis in original] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 240, para. 25.

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The practice of the ICJ similarly implies that ‘killing by starvation’ can only amount to an arbitrary deprivation of life, if it is also considered illegitimate under IHL. In the example of the right to life, HRL and IHL may be interpreted in a complementary fashion so conflict is avoided: IHL gives meaning to the HRL prohibition of arbitrary deprivation of life in armed conflicts. It is more difficult to avoid potential conflict between the right to food and IHL’s regulation of starvation, since the fundamental right to be free from hunger does not allow an exception and leaves no room for interpretation, though the right to adequate food leaves a margin for interpreting the adequacy standard, depending on the extraordinary circumstances of an armed conflict. But IHL does not comprehensively prohibit deliberate starvation and thus permits – if justified by military necessity – inter alia, starving fighters or a defensive scorched earth strategy in IACs. The principle of lex specialis again resolves this conflict and prioritises the more specific regime. IHL is specifically designed to regulate the conduct of hostilities and is thus the applicable lex specialis to deliberate starvation during armed conflict. The rules of IHL legitimately allow an exception of the broad right to food in armed conflict when fighters are deliberately starved. 2.3 Evaluation The provisions of both IHL and HRL generally complement and reinforce each other. IHL concretely prohibits deliberate starvation in armed conflict. HRL does not specifically tackle the issue. IHL can therefore generally be considered lex specialis, the suitable framework for addressing situations in which the rules of HRL and IHL clash. IHL should take priority when assessing the legality of attacks against fighters and when regulating the conduct of hostilities. IHL’s rules cannot be derogated by HRL. IHL takes the harsh realities of war and the military objectives of the states into account and seeks, appropriately, to mitigate them as far as possible, in accord with the principle of humanity. IHL is thus the pertinent framework for assessment of the legality of the killing of fighters during armed conflict; it has general priority over HRL in cases of discrepancy like those discussed above. The specific prohibitions in IHL are also crucial to assess the legality of the conduct of the belligerent parties towards individuals who do not participate in hostilities. Nevertheless, IHL does not foresee that states have positive duties to protect civilians, or to provide humanitarian relief, and so it is insufficient to protect against deliberate starvation. To fill this gap in humanitarian protection for civilians, we must resort to HRL; it is the pertinent framework to guarantee a minimum standard for victims of armed conflicts that do not

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participate in hostilities. The right to food entitles civilians to (at least) a minimum of food, in peacetime and during armed conflicts. When fused, IHL and HRL offer comprehensive personal protection against deliberate starvation during armed conflict. Although IHL is generally the pertinent lex specialis in armed conflict, both regimes should be seen as a single harmonised framework of protection. International law has progressed towards increased protections for civilians in armed conflict, and this is reflected in the convergence I describe, between IHL and HRL. The provisions of IHL and HRL complete each other and should be interpreted jointly.43 Harmonising IHL and HRL requires the systemic integration of these regimes in their legal environment. Isolated evaluations fail to take into account the overall public interest of the international community that underlies international law, and consider only the benefit of a particular regime.44 In the words of Judge Higgins in her Dissenting Opinion in the Nuclear Weapons Case, ‘[t]he judicial lodestar, whether in difficult questions of interpretation of humanitarian law, or in resolving claimed tensions between competing norms, must be those values that international law seeks to promote and protect.’45 Since IHL does not create individual rights or provide for an individual complaint mechanism,46 fundamental protection provided by both IHL and HRL in armed conflicts should be decided on by human rights bodies in a coherent manner that ensures the harmonised standardisation of both regimes. So far, the ECtHR has been reluctant to apply IHL to human rights disputes in armed conflicts.47 Its reluctance may be explained by the limited mandate of the ECtHR, and by political considerations.48 43 44

45

46 47

48

See also Kolb, Human Rights, para. 44. Cf. ILC, Fragmentation, Report 2006, para. 480. The overall public interests of the international community are, for instance, described in the Preamble and art. 1 of the UN Charter (see also, the hierarchy established by art. 103 UN Charter). ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, pp. 226ff., Dissenting Opinion of Judge Higgins, pp. 583ff., on p. 592, para. 41. See Dinstein, The Conduct of Hostilities, p. 25; Kellenberger, p. 20. In cases that arose in the context of the Chechen conflict in Russia, for instance, the ECtHR found violations of art. 2 ECHR, but did not specify if these were violations of IHL and were thus not excused even in the case of armed conflict (see Isayeva v. Russia, No. 57950/00, ECHR 24 February 2005; and Khashiyev and Akayeva v. Russia, Nos. 57942/00 and 57945/00, ECHR, 24 February 2005). For further cases, see ILA-Report on Use of Force 2010, p. 6. See art. 19 ECHR. Critically, Kolb, Human Rights, para. 44. For details, see Bowring, pp. 485-498; Abresch.

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Recognising certain rules as peremptory ( jus cogens) makes harmonisation more straightforward. Art. 53 VCLT clearly states that no derogation is permitted from jus cogens norms of international law. The following generally accepted peremptory norms are relevant in the context of the present analysis: the prohibition of genocide; the prohibition of crimes against humanity; and, the basic rules of IHL.49 But genocide and crimes against humanity only cover the most atrocious violations of human rights. Violation of these peremptory rules entails criminal responsibility. International criminal law serves here as a joint ground to enforce the common denominator of IHL and HRL in a uniform and overarching fashion.50 I indicated throughout my analysis that grave violations of both IHL and HRL incur criminal responsibility, if committed deliberately.51 International criminal justice, however, reflects a failure of the protective mechanisms of IHL and HRL: International criminal law only steps in when the provisions of IHL and HRL have already failed to prevent the population from deliberate starvation.52

49 50

51

52

See ILC, Fragmentation, Report 2006, para. 374. Cf. also the deliberations on the right to food as jus cogens on pp. 53f. Similarly, ICTY, The Prosecutor v. Delalic Zejnil, Case No. IT-96-21-T, Judgment of 16 November 1998, para. 200. A profound examination of the protection of ESCR through international criminal law is provided in Schmid. A good overview on the major ‘famine crimes’ and the required actus reus and mens rea elements is provided by Marcus. He criticises the existing framework of international criminal law as insufficient to cover ‘faminogenic behaviour’ and demands a codification of ‘famine crimes’ as such (ibid., pp. 279-281). Similarly, Lattimer describes the significant advances in international criminal justice in the context of a crisis in the international system of human rights protection (Lattimer, p. 387).

III. Food for Thought The right to food is firmly anchored in binding international law and should serve as a minimum standard during armed conflicts. But human rights standards have been augmented only theoretically, and the gap between normative expectation and delivery is increasing. This makes evident the systemic failure of implementation mechanisms for human rights in general, and ESCR in particular.1 Shortcomings in these mechanisms have been described at length by many scholars.2 If violations are to be prevented, the elaborated standards and obligations must be implemented and enforced. When states deliberately starve their populations, the victims need access to judicial or other appropriate remedies, and to reparations at both national and international levels.3 Taking into account the limited scope of this book, I nevertheless want to highlight some weak areas of implementation and enforcement, and suggest improvements that will more efficiently prevent deliberate starvation. The many cases of deliberate starvation that were used as examples in this analysis illustrate the legal standards have failed to prevent deliberate starvation in practice. The weak legal recognition of the right to food in domestic systems must be generally rectified. Governments tend to see ESCR as programmatic in character, as if it outlines only their aspirations for the future, based on the standard of progressive realisation set out in art. 2 (1) ICESCR.4 However, states have many immediate obligations to realise the right to food, and these should prevent deliberate starvation: the obligation to respect the right to food (to abstain from actions that could create famine); the obligation to protect and provide a minimum essential level of subsistence; and, the principle of non-discrimination. All these obligations must be met immediately, whatever the level of a state’s available resources. States may fear that they will be financially overburdened by an obligation to realise the right to food, but affirming a right to food does not imply that 1 2

3 4

Cf. Lattimer, p. 387. See, inter alia, Alston, Beyond ‘Them’ and ‘Us’; Rivier, pp. 739-761; Pasqualucci; Gherari, pp. 775-789; Costa, pp. 763-774 (see in particular regarding the European Social Charter pp. 772-773). Cf. more generally Mechlem, para. 29. See, for instance, the position of the Swiss government in the Report of the Working Group on the UPR on Switzerland, HRC, 22nd session, Addendum, UN Doc. A/ HRC/22/11/Add.1, 5 March 2013, Switzerland’s explanatory notes vis-a-vis the rejected recommendation No. 123.3 (Ratification of the Optional Protocol to the ICESCR).

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the state assumes the role of the main provider of food. Instead, it obliges the state to facilitate the realisation of the right to food, to avoid interfering in that right, and to prevent interference by others.5 The World Bank has refuted the argument of states that they just do not have the resources to fight food insecurity, and has demonstrated that failing to address malnutrition costs more in the end, in lost GDP and higher budget outlays.6 The state’s fears must be alleviated if the right to food is to be implemented. Governments generally take action when influential groups and institutions demand or support those actions.7 In democracies, social factors strongly influence government action. In the long run, widespread misunderstanding about these rights must be eliminated, rather than being reinforced by ideological confrontations. Windfuhr rightly considers that one of the reasons why the UN and the human rights community in general have neglected ESCR for so long, is that their violations mostly affect the less privileged.8 And this is precisely the sector of society that lacks the power and the resources to bring attention to its distress. If the population is well-informed about ESCR, and, in this particular case, the right to food, it will increase its leverage to shift government policy. National NGOs, specialised agencies (FAO, United Nations Environment Programme [UNEP], International Fund for Agricultural Development [IFAD] etc.), academia and research institutions should advance and encourage this understanding.9 One of the key strengths of human rights NGOs is their ability to shame, to investigate misconduct, and to expose it to public opprobrium. The international human rights community must not passively wait for public morality to coalesce, but instead take steps to shape public opinion by exposing cases of injustice with which the public will sympathise, and suggest a moral framework for interpreting them. In democratic states, the power of the public to hold official conduct up to scrutiny and to generate public outrage should not be underestimated.10 But citizens are only able to monitor their government in sufficiently transparent systems. Public criticism can only help to prevent 5 6 7 8

9 10

See, inter alia, Haugen, p. 1176. World Bank, Repositioning Nutrition as Central to Development – A Strategy for LargeScale Action, Washington, DC 2006, p. 26. For details, see Eyben/Harris/Pettit. Michael Windfuhr, Executive Director of FIAN International, Seminar on the Justiciability of ESCR, organised by the OHCHR, Geneva, 5-6 February 2001. See also Skogly, pp. 70ff. Eide, Strategies for the Realization of the Right to Food, p. 471. Roth, p. 67. On the major role of citizens as monitors, see Report by the Special Rapporteur on the Right to Food to the UN GA, A/68/288, 7 August 2013, paras. 28-32. Allen

iii. food for thought

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famines if the media are free to cover them. The most outrageous cases of deliberate starvation have been carried out in states where transparency is avoided (e.g., DRK, China). In such cases, the international community needs to step in and pressure the offending state. Theoretical debates do not generally trigger public outrage or mobilise people in the streets.11 As Chapman has pointed out, identifying violations ‘may prove a more effective path to conceptualising the positive content of ESCR when compared to the more abstract legal or philosophical analyses attempted thus far.’12 Those who are negatively affected must also be taught to use their rights.13 The right to food must be seen ‘through the eyes of those for whom it is designed – the hungry and those threatened with hunger’.14 According to Robertson, hungry people need to know if the right to food applies to them and their circumstances. Like Robertson, I believe that populations should not be obliged to analyse endless international instruments and scholarly studies. The essence of the law should be easily accessible, simply written, and concrete enough for most people to judge its application in their situation. Hungry people should also know how much food they are entitled to. The right to food is complex, and does not easily translate into well-defined entitlements and responsibilities.15 International law should set concrete minimum standards of adequacy, and determine the quantitative and qualitative standards upon which people can base their demand for food. These standards should then be legislated domestically in an equally clear and simple manner.16 Nutritional standards are, however, far from globally agreed upon. Not even first world nations with all the resources at their disposal can agree on an evidence-based standard of nutrition.17 Still, FAO, UNICEF, WHO, and other international organisations have compiled helpful lists on nutrition standards

11 12 13 14 15 16 17

demonstrates the strong impact of public outrage about atrocities on the subsequent development of methods to prohibit starvation in IHL (Allen Ch., pp. 41-43). See a similar approach in Roth, pp. 67-68. Roth finds ‘the typical discussion of ESC [economic, social and cultural] rights rather sterile’ (abbreviation in original, ibid., p. 64). Chapman, pp. 23-66. Eide, Strategies for the Realization of the Right to Food, p. 471. Robertson, p. 455 (calling this point of view ‘the preferential option for the poor’). Cf. Drèze, p. 64. Cf. Robertson, p. 456. For details, see Coomans/Yakpo, pp. 17-33 (they focus on the national framework law in South Africa). See, for example, Sweden’s recent adoption of a set of new food standards with a ‘lowcarb, high-fat’ nutrition advice to fight obesity, that contradicts much of the received wisdom from nutritional experts around the world (Swedish Council on Health Technology Assessment, Dietary Treatment of Obesity, Report No. 218, 2013).

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and thus translated the right to adequate food into concrete demands.18 The Indian Food Security Bill of 2013 serves as an example of a set of concrete and generally intelligible provisions. It guarantees, inter alia, that 67% of the population is entitled to 5 kilograms per person per month of subsidised wheat, rice and coarse cereals.19 Although this entitlement alone does not meet the standard of nutritious food, it is at least a starting point for a possible future system that could be expanded to more nutritious food (e.g. entitlements to fruits or vegetables). People must also have access to remedy if they are hungry. ESCR and CPR are interdependent: A guarantee of the right to food is of little value if people are not free to express their outrage at being deprived of the right.20 Affected people must have access to claims mechanisms. States are obligated under HRL to provide remedies when they violate human rights. The states have some discretion as to the remedies they provide under domestic law, but they must be accessible and effective.21 Accessible, decentralised remedy mechanisms should be established, without excessive formalities and without posing language barriers to ethnic groups. The claim mechanisms must effectively process claims, and have the power to prescribe remedies. They should be independent and impartial and able to prevent the claimants from being exposed to retaliation for exercising their rights.22 It is unsatisfactory that states bear the primary responsibility to monitor violations of ESCR, since it is unrealistic to expect that the entity responsible for violating rights is the most qualified to police itself.23 Precisely because 18

19

20 21

22

23

See, for instance, Management of Nutrition in Major Emergencies, Geneva: WHO 2000, with exact figures of nutritional requirements in Annex 1; Allen L., Ending Hidden Hunger; FAO Factsheet, ‘The Human Right to Adequate Food in the Global Strategic Framework for Food Security and Nutrition – A Global Consensus’, Rome: FAO 2013, available at www.fao.org/docrep/019/i3546e/i3546e.pdf. News Communication by Special Rapporteur Olivier De Schutter of 8 July 2013, ‘Indian food security bill is “victory for the right to food” – Special Rapporteur in New Delhi’, available online at www.srfood.org/en/indian-food-security-bill-is-victory-for-theright-to-food-special-rapporteur-in-new-delhi. Robertson, p. 456. Committee on ESCR, General Comment No. 12, para. 32; art. 2 (3) ICCPR; HR Committee, General Comment No. 31, para. 15. For details, see McCorquodale, Corporate Social Responsibility, p. 393. Report by the Special Rapporteur on the Right to Food to the UN GA, A/68/288, 7 August 2013, para. 22. Similar conclusions were drawn during the conference on ‘Access to Justice – Legal Empowerment and Development’, in Bern, December 2012, inter alia, where Sepulveda Magdalena was speaker. See also Lattimer, p. 387.

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national claims mechanisms are not ideal in malevolent regimes, additional international mechanisms should be established to ensure that an international body accurately monitors a state’s compliance with the right to food. Supervision based on monitoring state reports every five years is certainly insufficient to tackle acute cases of starvation.24 Individual complaint mechanisms should be developed, and sufficient resources allotted, so that complaints are properly considered. In 1990, the Committee on ESCR began discussing the creation of an individual complaint mechanism under the ICESCR, and submitted a complete draft Optional Protocol to the ICESCR in 1997.25 The matter was under consideration for a decade, since governments were not enthusiastic about adopting it.26 In 2008, the Optional Protocol to the ICESCR was finally adopted by the HRC and the GA.27 The Protocol has been harshly criticised as a wrongheaded approach by scholars and governmental representatives.28 By January 2014, this Protocol was ratified only by eleven states.29 States are reluctant to implement effective mechanisms for ESCR; they argue that these rights are aspirational rights and, by their nature, unsuitable for judicial adjudication.30 But the wealth of comparative case law in which judicial bodies have adjudicated alleged violations of ESCR proves the misguided nature of this 24

25

26 27

28

29 30

Similarly, Robertson, p. 456. Cf. also Committee on ESCR, General Comment No. 12, para. 32. The weak supervision of the submitted state reports by the Committee on ESCR was described on pp. 86f. UN Doc. E/CN.4/1997/105, Annex. The development and positions are described in the Report of the Independent Expert on the Question of a Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, E/CN.4/2002/57, 12 February 2002. See also Ssenyojo, Economic, Social and Cultural Rights, p. 81. Steiner/Alston/Goodman, p. 362. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the HRC by Res. 8/2 of 18 June 2008, and by the UN General Assembly by Res. A/RES/63/117 of 10 December 2008. The Optional Protocol to the ICESCR entered into force on 5 May 2013, and is available at www2.ohchr.org/english/law/docs/A. RES.63.117_en.pdf. For details on the content and the possible implications of the Optional Protocol, see the former Advisor to the UN Special Rapporteur on the Right to Food, Golay, in: id., The Optional Protocol; Biglino/Golay. Dennis and Stewart call the individual-complaints mechanism for ESCR ‘an ill-considered effort to mimic the structures of the ICCPR – and largely for mimicry’s sake’ (see Dennis/Stewart, p. 514). For details, see Ssenyojo, Economic, Social and Cultural Rights, pp. 82-88. A list of the state parties is provided at https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en. De Waal, p. 9.

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argument.31 It may be more difficult to adjudicate ESCR than CPR, and ESCR may be more costly to implement, but this does not prevent ESCR, in toto, from being the object of judicial adjudication.32 The courts may find it a challenge to interpret the right to food, when it becomes the subject of litigation, but these challenges do not rule out the justiciability of the right to food as such.33 The existing legal uncertainties and conflicting interpretations of the right to food make litigation and judicial adjudication particularly important. Judicial bodies are responsible for protecting the rights of disadvantaged groups against the biased decisions of political majorities and for offering impartial solutions. The administrative costs will be, in the long run, similar to those of implementing CPR and do not justify an inferior realisation of the only human right in the two Covenants that is qualified by the term ‘fundamental’.34 Protecting ESCR brings longterm benefits for economic growth and political stability. States should be encouraged to ratify the Optional Protocol to the ICESCR,35 since that will strengthen the implementation of ESCR and make states more responsible for ESCR.36 This book is intended to draw attention to situations of deliberate starvation, and to prove their unlawfulness. Demands to fully realise ESCR must not be based on extreme claims and a certain realism in the quest for these rights must be kept. Strict provision of ideal distributive justice might not meet the objective. While a call for a rigorous realisation of the general right to food might be counterproductive, the unacceptable nature of deliberate starvation of a state’s own population for political reasons must be acknowledged. To efficiently tackle deliberate starvation, claims to a right to food must be linked to political rights and other ESCR (such as the right to 31

32 33 34 35 36

Courtis persuasively argues ‘that there is no insurmountable conceptual difficulty to conceive ESC [economic, social and cultural] rights as justiciable rights’ (abbreviation in original, Courtis, pp. 318-320, for different points of view). Courtis, p. 318. For details, see Coomans, Justiciability of Economic and Social Rights; Borghi; see also Dennis/Stewart, pp. 462-515; Schneider; Sepulveda, pp. 343ff. The particular challenges regarding the justiciability of the right to food are elaborated in Courtis, pp. 321-326. See the wording of art. 11 (2) ICESCR. Cf. also the recommendation by the Special Rapporteur on the Right to Food in its Report to the UN GA, A/68/288, 7 August 2013, para. 58. In the European human rights mechanism, the state responsibility as regards ESCR is also highly unsatisfactory. Costa calls the state responsibility as regards the European Social Charter as ‘at an embryonic stage’ and considers this issue as ‘without doubt one of the challenges of the 21st century’ (ibid., pp. 773-774).

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education, the right to work, and the right to health).37 As Drèze emphasises, these rights complement and reinforce each other: ‘[T]aken in isolation, each of them has its limitations, and may not even be realizable within the present structure of property rights. Taken together, however, they hold the promise of radical change in public priorities and democratic politics’.38 And radical change is what we need to put an end to purposely created food insecurity. The poor are usually excluded from important decisions and law-making processes. Change is only possible if the less privileged have ways in which they can exercise voice. I thus want to finish with the encouraging words of Koskenniemi: ‘International law’s energy and hope lies in its ability to articulate existing transformative commitment in the language of rights and duties and thereby to give voice to those who are otherwise routinely excluded.’39

37

38 39

The right of every citizen to take part in the conduct of public affairs and the rights of minorities are also important (see Special Rapporteur on the Right to Food, Olivier De Schutter, Large-Scale Land Acquisitions and Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge, 28 December 2009, A/HRC/13/33/Add.2, paras. 28, and 30). Drèze, p. 64. Koskenniemi, The Gentle Civilizer of Nations, pp. 516-517. For details on the process of participation, see Gaventa, pp. 1-11.

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Index IAboriginal population: 135-136 Access to food: 30, 59, 64-65, 68-69, 73, 109, 120-121, 123, 129-130, 181 Access to land: 43-46, 63, 93, 99, 112-116, 139 Access to remedy: 263, 266-268 Accessibility of food: see ‘Access to food’ Additional Protocol I: see ‘Protocol Additional I to the Geneva Conventions of 1949 (API)’ Additional Protocol II: see ‘Protocol Additional II to the Geneva Conventions of 1949 (APII)’ Additional Protocol to the American Convention on Human Rights in the Area of ESCR: see ‘Protocol of San Salvador’ Additional Protocols: see ‘Protocols Additional to the Geneva Conventions of 1949 (APs)’ Adequacy standard: 29-30, 57, 71-72, 75-76, 82-83, 97-98, 121-122, 153-154, 233, 251, 260, 265 African Charter on Human and Peoples’ Rights: see ‘Banjul Charter’ African Charter on the Rights and Welfare of the Child: 33 African Commission of Human and Peoples’ Rights (African HR Commission): 70, 92, 102-104, 107, 139, 199 Agriculture: 43, 46-47, 62, 65-66, 92-93, 98, 105, 111, 131, 142, 156, 162, 196 (see also ‘Access to land’; ‘Farmers’) American Convention on Human Rights (ACHR): 34-35, 38, 100, 127 (see also Protocol of San Salvador) Antagonisms (between IHL and HRL): 259260 Anti-personnel mines: 195 Application: see ‘International human rights law‘; ‘International humanitarian law’ Armed conflict: 162, 173, 174-175 Application of human rights law: 251-252 Classifijication: 176-179 Dichotomy: 164, 167-168, 179-180 Threshold: 174-175

(see also ‘International armed conflict’; ‘Non-international armed conflict’) Arms: see ‘Weapons’ Attack: 88-90, 188, 190-191, 198-223 against objects indispensable to the survival of the civilian population: see ‘Objects indispensable to the survival of the civilian population’ Defijinition: 190-191 Indiscriminate attacks: see ‘Principle of distinction’ Support of Private Attacks v. State Agency: 67-68 Attribution of conduct to the state: see state agency Availability of food: 29, 30, 48, 71, 97-98, 109110, 121, 129, 131, 133-134, 156-157 Bangladesh: 46 Banjul Charter: 34, 102-104, 127, 139 Belligerent occupation: 10, 165-166, 200-206, 220, 224 Bengal Famine: 1, 109 Biafra: 163, 223, 227 Biological weapons: 194-195 Blockade: 71-72, 76-91, 163-164, 174-175, 223244 Defijinition: 224 Distinction from siege: 224-226 Bolivia: 92 Bosnia: 50, 101, 136, 179, 225-226 British India: 8, 72 (see also ‘India’) Bulgaria: 136-137 Burma: see ‘Myanmar’ Business and Human Rights: see ‘Private sector’; ‘UN Guiding Principles on Business and Human Rights’ Canada: 135-136 Capital flight: 139 Carthage: 1 Central African Republic (CAR): 177-178 Chad: 177-178 Chemical weapons: 194-195 Child mortality: 35, 39, 121-122, 125-126, 138

index Children: 7, 30, 33, 35, 37-38, 72, 121-123, 126, 136-138, 151-152, 182, 227 China: 62-63 Climate change: 44, 46, 117, 155, 157, 177 Civil war: see ‘Non-international armed conflict’ Civil and political rights: 21-26, 38, 54, 63, 129, 251, 266-268 Comparison to economic and social rights: 21-26, 38, 54, 129, 140, 266-268 Positive obligations: 99-101, 124-128 Civilian objects : 180, 188, 193, 199, 205, 207, 210-211, 214 Civilian population: 10-11, 49, 83, 184-185, 186, 188-191, 193, 249, 257-258 Defijinition: 188 (see also ‘Civilians’; ‘Civilian starvation’; ‘Objects indispensable to the survival of the civilian population’, ‘Principle of distinction’) Civilian starvation : 183, 186, 187-191, 193, 257-258 (See also ‘Blockade’; ‘Prohibition of destruction of objects indispensable to the survival of the civilian population’; ‘Prohibition of Starvation of Civilians as a Method of Warfare’;) Civilians : 10-11, 188-191 Defijinition : 188 (see also ‘Civilian population’; ‘Civilian starvation’; ‘Enemy civilians’) Cluster bombs : 195-196 Codex Alimentarius : 97-98 Collateral damage: 186, 191, 193, 201, 236, 249, 256-257 Collective punishment: 82, 193, 215, 255 Combatant: 180, 189, 191-193, 202-205 Defijinition: 180 Starvation of Combatants: 191-193, 202-205 (see also ‘Fighters’; ‘Principle of distinction’) Command economy : 24, 144-145 Committee on ESCR: 21-22, 29, 31, 36, 39, 40, 41, 44, 54, 56, 58-60, 64-65, 71, 73-74, 81, 84, 104, 106-108, 114, 120, 121, 128-129, 131, 132, 144, 148, 150, 252, 267 Complaint mechanism: see ‘Individual complaint mechanism’

299 Contamination: see ‘Oil contamination’; ‘Food safety’ Contraband of war: 228, 233-234, 237 Convention for the Prevention and Punishment of the Crime of Genocide: see ‘Genocide Convention’ Convention on the Elimination of all Forms of Discrimination against Women (CEDAW): 33, 90, 115 Convention on the Rights of Persons with Disabilities (CRPD): 33 Convention on the Rights of the Child: 33, 123 Convergence of IHL and HRL: 254- 255 Correlation of democracy and famine: 25, 36, 119, 148, 151, 264 Correlation of human rights: see ‘interrelation of human rights’ Court of Justice of the Economic Community of West African States (ECOWAS): 103, 107-108 Crimes against humanity: see ‘Prohibition of crimes against humanity’ Criminal responsibility: see ‘International criminal law ‘ Cuba: 51, 147-148 Customary international law: 49, 51-55, 7476, 100-101, 139, 159-160, 169-170, 186-187, 195, 204-206, 213-215, 218, 221, 234-235, 242-244, 255 Cyclone: 76, 90, 160 Dams: 196 Darfur: see ‘Sudan’ Death by hunger: 5-6, 36, 74-75, 153-154, 192193, 248, 260 (see also ‘Right to life’) Defensive attacks: 218-223, 218-223 Degrading treatment: See ‘Prohibition of inhuman and degrading treatment’ Democracy: see ‘Correlation of democracy and famine’ Democratic People’s Republic of Korea (DRK): 79-81, 147, 152-153, 156 Democratic Republic of the Congo (DRC): 73, 147, 217 Derogation clause: 57-58, 81-82, 251-252, 262 Destruction: 64, 103-104, 196-223 Developing countries: 47, 105, 139, 144, 156, 159, 214, 243

300 Development: 26, 57, 132-145, 162 Benchmarks: 143-144 Correlation with armed conflict: 162 Correlation with implementation of human rights: 25-26, 47-48, 140-142 Sustainable development: 46-47, 97, 103, 105, 140-143 (see also: ‘Sustainability’) Right to Development: 140-141, 145 (see also ‘Economic growth’; ‘Development goals’) Development Goals: 140-145 Dignity: 30, 36, 37, 42, 56-57, 81, 127, 133, 255 (see also ‘Prohibition of inhuman and degrading treatment’) Disaster: 44-45, 76-91, 117-120, 139, 146-161 (see also ‘Emergency’) Discrimination: see ‘Prohibition of Discrimination’ Disease: 6-7, 9, 35, 45, 76, 151, 153-154, 173 Displacement: see ‘Internally displaced persons’ Distinction: see ‘Principle of distinction’ Distributive justice: 118, 131, 142, 144-145, 268 Drought: 46, 62, 63, 89, 117-118, 131, 146-148 Economic growth: 25-26, 47-48, 57, 62, 66, 93, 132, 145, 268 Economic Community of West African States (ECOWAS): 103, 107-108, 117, 119, 138, 157 Economic, social and cultural Rights: 21-26, 37-38, 40, 54, 56-57, 59-60, 63, 81-82, 145, 251, 263-268 Comparison to civil and political rights: 21-26, 38, 54, 129, 140, 266-268 Correlation with economic productivity: 8, 26, 71-72, 132, 145, 268 Inferior status: 23-26, 54, 140, 263 See also ‘Progressive realisation’ and ‘Monitoring’ Education: 36, 135, 139, 145, 264, 268-269 Efffective control: 67-68, 165, 178-179 Embargo : 27, 224-225 Emergency : 47, 57-58, 78-79, 81- 84, 90-91, 122-123, 139, 146-161, 251-252 (see also ‘Derogation clause’; ‘Disaster’) Enemy civilians : 189-191, 203, 217, 237 Entitlement approach : 34, 48, 108-109, 120122, 130, 134-135, 138, 156-157, 159

index Environment: 18, 46-47, 92-93, 94-95, 103, 107-108, 117, 194 Erga omnes obligations: 50, 53-54, 101 Eritrea: 86-87, 205 Ethiopia: 65-66, 117-118, 157, 205 Ethnicities: 152, 154, 164, 165, 176-177, 199, 208, 217, 225-226 (see also ‘Genocide’) European Convention on Human Rights (ECHR): 23, 35, 36-38, 58, 100, 127 European Commission of Human Rights: 37 European Committee of Social Rights: 136 European Court of Human Rights (ECtHR): 39, 100, 127, 261 (see also ‘European Commission of Human Rights’) European Social Charter: 23, 34, 136, 268 Exchange entitlement: 120, 133-135 Extermination: 243 Famine: 2-3, 119-120 (see also ‘Starvation’) Correlation with Democracy: 25, 36, 119, 148, 151, 264 Defijinition: 9 Mortality: 7, 40, 45, 121-122, 155 FAO: 21, 97, 135, 143, 264-265 (see also ‘FAO Voluntary Guidelines’) FAO Voluntary Guidelines: 27, 40, 59, 78, 107, 115, 144, 152 Farmers. 43, 43-44, 47, 48, 62-63, 65, 92, 105, 112-113, 156, 197 Fighters: 10, 180, 188-189, 191-193, 194, 212-213, 228-229, 249, 259-260 Defijinition: 180 Starvation of fijighters: 191-193, 202-205, 213, 228-229, 249, 259-261 Filling gaps: 51-55, 180, 255-258 Fisheries: 39, 93, 116, 139 Floods: 80, 90, 117, 146-148, 154, 163, 196 Food aid: 76-91, 119-160, 236-244 Defijinition: 78 (see also ‘Humanitarian assistance’) Food and Agriculture Organization of the United Nations: see ‘FAO’ Food assistance: see ‘Food aid’ Food Assistance Convention: 47, 78, 159 Food blockade: see ‘Blockade’ Food countermovement: 156-157 Food insecurity 8-9 (see also ‘Hunger’; ‘Malnutrition’)

index Food price: 48, 92, 108-112, 133-135, 138, 156157 Food safety: 70, 92, 94-95, 97-98, 102, 104, 153, 199 Force majeure: 57 Forced evictions: 2, 43-44, 99, 112- 116, 125 (see also ‘Access to land’) Forced movement: 45, 175, 198, 2022-203, 205, 230 (see also ‘Forced evictions’) Fragmentation of international law: 253-262 France: 143, 160, 165, 205, 233 Gaps: see ‘Filling Gaps’ Gaza: 71-72, 75-76, 81-82, 231, 252 Gender-based violence: 73, 89-90, 153 (see also ‘Women’) Geneva Convention IV (GCIV):182, 189-190, 227-228, 237-239 Geneva Conventions (GCs): 164, 168, 182, 190 Common art. 3: 169-172, 184, 190, 218, 238, 254, (Scope of application of common art. 3: 171-172 ) Scope of Application: 164, 169 Genocide: see ‘Prohibition of genocide’ Genocide Convention 48-50, 101 Germany: see ‘National Socialist Germany’ Global warming: see ‘Climate change’ Great Leap Forward: see ‘China’ Greece: 1, 127 Guatemala: 125 Hague Regulations: 182,192, 203-204 Holodomor: see ‘Ukraine’ Honduras: 100 Horn of Africa: 117-118 Hors de combat: 192 Hostilities: 176 Human Rights: 28, 49, 53, 64, 129, 190, 254255, 262 (see also ‘International human rights law’; ‘Interrelation of human rights’) Humanitarian Assistance: 76-91, 146-160, 236-244 Blocked: see blockade Defijinition: 78-81 Human rights instruments: 77-78, 83-91, 255-257 (See also ‘Right to humanitarian assistance’)

301 Humanitarian law: 236-244 Restrictions: 86-89 Status of international customary law: 7476, 159-160, 242-244 Humanitarian personnel: 87-89, 151, 228, 236, 240, 243-244, 258 Humanitarian relief: see ‘Humanitarian assistance’ Humanity: 99, 151-152, 172, 187, 192, 211, 218, 236, 243, 248, 260 (see also ‘Crimes against humanity‘) Hunger: (see also ‚Starvation’) As a cause of conflict: 162 Defijinition: 31 Figures of hungry people in the world: 2, 143-144 ICRC Study on the Customary Rules of IHL: 169 Illness: see ‘Disease’ Immediate obligation: 22-23, 59-60, 69, 73, 105, 128, 136, 145, 150, 248, 250, 263 Implementation: 263-268 Incendiary weapons: 195 Incidental civilian sufffering: see ‘Collateral damage’ Indigenous people: 44, 65, 99, 112-115, 125, 135-136, 154 India: 1, 8, 109-110, 122, 126-127, 138, 265-266 Indiscriminate attacks: see ‘Principle of distinction’ Indiscriminate weapons: 184, 194-195 (see also ‘Principle of distinction’) Individual complaint mechanism: 125-126, 261, 267-268 Inequality: 38, 134, 142, 155 (see also ‘Prohibition of discrimination’) Inhuman treatment: see ‘Prohibition of inhuman and degrading treatment’ Insurance: 138, 139, 157, 159 Intention: 14-16, 50, 64, 77, 186, 220, 229 Inter-American Court on Human Rights: 55, 100, 113, 124-125, 137 Internal disturbances: 168-169, 171 Internal displacement: see ‘Internally displaced persons’ Internally displaced persons (IDPs): 7, 45-46, 77, 89, 154-155, 175, 198, 199, 217

302 International armed conflict: 11, 164, 175 (see also ‘Armed conflict’) Applicable international law: 199-211, 219221, 227-230, 232-235, 237-244 Defijinition: 164 International Court of Justice (ICJ): 13, 46, 50-51, 53, 67-68, 81-82, 101, 170, 172-173, 179, 251, 257, 259-261 International Covenant on Economic, Social and Cultural Rights (ICESCR): 21-22, 24-25, 32-33, 38-40, 51, 55-60, 247-248, 249-250, 267 International Covenant on Civil and Political Rights (ICCPR): 22-25, 35-39, 58-60, 100, 124, 127-128, 267 International Criminal Court (ICC): 171, 178 (see also ‘Rome Statute of the International Criminal Court’) International criminal law: 5-6, 15-16, 48-50, 205-206, 215, 243-244, 262 International Criminal Tribunal for Rwanda (ICTR): 10, 11, 16, 171, 193, 198, 215 International Criminal Tribunal for the former Yugoslavia (ICTY): 11, 16, 49-50, 68, 168, 170-171, 175, 190, 198, 208, 210, 215, 226, 255 International human rights law (HRL): 19160, 247-248, 249-250, 251-262, 263-269 Application: 81-82, 148, 251-252 (see also ‘Derogation clause’) Limitation clause of human rights: 55-57, 77, 153, 257 Relationship to international humanitarian law: 249- 262 International humanitarian law (IHL): 161244, 248-250, 251-262 Application: 167-180, 252 Relationship to international human rights law: 249- 262 International Law Commission (ILC): 12, 32, 53, 84, 149-150, 155-156, 159, 253-254, 259 Interrelation of human rights: 24-26, 36, 42, 140-141, 266, 268-269 Iraq: 71, 169, 224-225 Ireland: 156 Israel: 71-72, 75-76, 82, 87, 169, 231 (see also ‘Gaza‘) Janjaweed: see Sudan

index Japan: 15, 79 Jus cogens: 50, 51-55, 58, 75, 101, 137, 187, 262 Kenya: 43, 92, 117 Killing by starvation: see ‘Death by hunger’ Kuwait: 71, 224-225 Lake Victoria: 93 Land: see ‘Access to land’ Land grabbing: 44, 112-116 (see also ‘Access to land’) Land mines: see ‘Anti-personnel mines’ Lex specialis: 257-261 Lieber Code: 182 Limburger Principles on the Implementation of the ICESCR: 40, 56 Limitation clause: see ‘International human rights law’ London Declaration concerning the Laws of Naval War: 231-234 Maastricht Guidelines on Violations of ESCR: 40-41, 57, 70, 96 Malnutrition: 7-8, 71-72, 75-76, 121-122, 125126, 138-139, 141, 154 Correlation with conflicts: 162 Defijinition: 7-8 Economic productivity: 8, 26, 71-72, 132 Education: 139 Figures: 3, 143-144 Mao Zedong: see ‘China’ Marginalisation: see ‘Prohibition of discrimination’ Market mechanism 48, 107, 109-112, 122, 135, 156-157 Martens clause: 172, 213, 218 Maternal mortality: see ‘Pregnancy’ Mens rea: see ‘Intention’ Micronutrient defijiciencies: See ‘Malnutrition’ Migration: 7, 18, 45 (see also ‘Internally displaced persons’) Military operations: 191, 217 Military objective: 180, 188, 213-214, 248-249, 258-259, 260 Defijinition: 180, 188 Military necessity: 182, 184, 192, 194, 201, 203204, 215, 218, 219, 220, 236, 243

index Millennium Development Goals: see ‘Development goals’ Mines: see ‘Anti-personnel mines’ Minorities: 135-137 (see also ‘Indigenous people’) Monitoring: 60-61, 73-74, 106-108, 131-132, 142-144, 266 Mortality: see ‘Child mortality’; ‘Famine’; ‘Maternal mortality’; ‘Sex-specifijic mortality’ Mugabe: see ‘Zimbabwe’ Myanmar: 74, 76, 90-91, 109, 146, 160 National Socialist Germany: 50, 137, 227 Nationality: 11, 152, 164, 189-191, 208, 210, 226, 232, 237 Natural resources: 18, 30, 105, 107, 115, 139 (see also ‘Access to land’) Naval blockade: 224, 231-235 Necessities of war: see ‘Military necessity’ Negative obligation: 69-74, 85, 86-89 (see also ‘Obligation to respect’) Neumann Kafffee Gruppe: see Uganda Nigeria: 43, 66, 70, 93-95, 101-103, 107-108, 114, 163-164, 223 Non-state actors: 68, 91-94, 94-95, 179, 256 (see also ‘Obligation to protect’) Non-international armed conflict: 11, 164, 167-172, 177-178, 217, 223, 226 (see also ‘Armed conflict’) Applicable international law: 168-172, 184, 211-218, 221-223, 228-230, 239-244 Defijinition: 164, 168 Threshold: 170-173, 174-175 North Korea: see Democratic People’s Republic of Korea Nuremberg Principles: 203-204 Nuremberg Tribunal: 204, 227 Nutritional requirements: 7-8, 71-72, 82, 121122 (see also ‘Malnutrition’) Objects indispensable to the survival of the civilian population: 196-222 (see also destruction) Obligation of result: 32, 103, 104 Obligation to fulfijil: 31-32, 120-132, 137-140 Obligation to protect: 31, 96-108, 108-116 Obligation to respect: 31, 68-76, 86-89 Occupation: see ‘Belligerent occupation’

303 Occupied Palestinian Territory: 71-72, 81-82, 121, 224 Offfensive attacks: 198- 218 Ogoni: see ‘Nigeria’ Oil contamination: 66, 70, 94-95, 101-103, 107 Optional Protocol to the ICESCR: 267-268 Palestine: see ‘Occupied Palestinian Territory’ Peace-keeping missions: 178, 243 Peasants: see ‘Farmers’ Peremptory norms: see ‘Jus cogens’ Pillage: 198, 215 Poor: see ‘Poverty’ Population: 10-11, 164 Positive obligation: 96-101, 118, 120-128, 137140, 249, 256, 260-261 (see also ‘Obligation to protect’; ‘Obligation to fulfijil’) Poverty: 23, 25, 48, 93, 107-108, 114, 126-127, 132, 133-145, 155-158, 269 Correlation with armed conflict: 162 Defijinition: 36, 133 Figures: 133, 143-144 Measures against Poverty: 133-140, 141-142, 159 Pregnancy: 7, 39, 123, 126, 151, 182, 227 (see also ‘Women’) Prevention: 25-26, 117, 130, 149, 158 (democracy as famine prevention: see ‘Correlation of democracy and famine’) Prices: see ‘Food price’ Principle of distinction: 10, 180, 183-184, 186189, 193, 194, 210, 214, 218, 234-235, 249 Private sector: 13, 91-116, (see also ‘Non-state actors’) Obligations: 94-95, 99 Privatisation of water: 42, 92, 97 Progressive realisation: 58-61, 104-108, 128132 Prohibition of crimes against humanity: 4850, 53-54, 75, 101, 262 Prohibition of destruction of objects indispensable to the survival of the civilian population: 196-222 Prohibition of discrimination: 38-40, 46, 5455, 59-60, 72, 127-128, 136-137, 152 (see also ‘Immediate obligations’; ‘Women’)

304 against minorities: 135-137 Defijinition: 38-39 Status of international customary law: 54-55 Prohibition of genocide: 48-50, 53-54, 75, 101, 178, 187, 262 Prohibition of inhuman and degrading treatment: 36-38, 127, 255 Prohibition of starvation of civilians as a method of warfare: 181-187 Proportionality: 55, 71, 82, 183, 186-187, 192193, 210, 213, 218, 230, 234 Protocol Additional I to the Geneva Conventions of 1949 (API): 184-185, 187, 190-191, 200-203, 219-221, 228-230, 239-242 Scope of application: 169 Protocol Additional II to the Geneva Conventions of 1949 (APII): 169, 171-172, 185187, 191, 211-213, 221-222, 228-230, 239-242 Scope of application: 171-172 Protocols Additional to the Geneva Conventions of 1949 (APs): 181, 184-187, 189-191, 228-230, 239-242 Protocol of San Salvador: 33 Rationing: 79-81 Reprisal: 202, 206 Responsibility to protect: 91 Right to Adequate Food: (see also ‘Adequacy standard’) Core content: 30, 97, 121 Defijinition: 29-30 Distinction compared to the right to be free from hunger: 29-32 Sources of international human rights law: 32-34 Status of international customary law: 54, 75-76 Right to be Free from Hunger Core content: 30, 56, 250-251 Defijinition: 30-31 Distinction compared to the right to be free from hunger: 29-32 Immediate obligations: 60 (see also ‘Immediate obligations’) Sources of international human rights law: 32-34 Status of international customary law: 52-54, 74-75

index Right to Equality: 39, 60 (see also ‘Prohibition of discrimination’) Right to Food: 19-160 (see also ‘Right to adequate food’; ‘Right to be free from hunger’) Core content: 30, 56, 130. 248, 250-151 Defijinition: 29 Minimum Core Content: 30 Origin: 20-21 Related instruments: 41-50 Sources of international human rights law: 32-41 Status of international customary law: 51-54 Right to Humanitarian Assistance: 83-86, 87-89, 148-150, 255-257, 260-261 (see also ‘Humanitarian assistance’) Status of international customary law: 74-76, 159-160 Right to Life: 30, 35, 71, 74-75, 81, 100, 124-127, 138, 148, 248, 251-252, 259-260 Positive obligations: 100, 124-127, 138 Sources of international human rights law: 35-36 Status of international customary law: 52-54, 74-75 Right to Water: 41-43, 104 Roma: 136-137 Rome Statute of the International Criminal Court: 15, 48-50, 171, 187, 188, 194, 198, 206, 215, 230, 243-244 Rural areas: 43, 46, 73, 109, 115, 135, 138, 156 Russia: 165, 227, 261 (see also ‘Soviet Union’) Salt: 1, 8, 72 San Remo Manual on International Law applicable to Armed Conflicts at Sea: 231-235 Scorched earth: 163-165, 196-223 Defensive scorched earth: 219-223 Defijinition: 163-164 Sen’s entitlement approach: see ‘Entitlement approach’ Sex-specifijic mortality: 39-40 (see also: ‘Pregnancy’) Shaming: 264-265 Shell: see Nigeria Siege: 163, 182, 223-244, Defijinition: 224

305

index Distinction from blockade: 224-226 Social Darwinism: 137 Social Rights: 26, 34-35, 136 (see also ‘Economic, Social and Cultural Rights’ ) Social security : 34, 110, 119, 132, 134-135, 138140, 157 Socialist Federal Republic of Yugoslavia: 225-226 (see also ‘International Criminal Tribunal for the former Yugoslavia’) Somalia: 89, 117, 236 Sources of international human rights law: 32-41 South Africa: 51, 113-114 Soviet Union: 50, 65 Sparta: 1, 137 Special Rapporteur on the Right to Food: 4, 21, 29, 31, 40, 41, 44, 73, 110-111, 115, 120, 135, 144 Speculation: 109, 111-112 Sri Lanka: 86 Stalin: see ‘Ukraine’ Starvation ‘as a Weapon’: 15-17, 163, 192-193 Defijinition: 5-9, 184 Intent to starve: 14-16 (see also ‘Intention’) of civilians: see ‘Civilian starvation’ of Combatants: see ‘Combatants’ of Fighters: see ‘Fighters’ Ways to efffect starvation: 62-64, 163-165 State agency: 12-14, 16, 67-68, 94-95 Stateless: 45-46, 155, 190 Sudan: 1-2, 92, 103-104, 148, 177-179, 198-199, 211, 215, 223, 243 Supervision: see ‘Monitoring’ Supreme Court of India: see ‘India’ Sustainability: 30, 46-47, 92-93, 97, 140-143 (see also ‘Development’) Sustainable Development Goals: see ‘Development goals’ Synergies (of IHL and HRL): 254-258 Syria: 2, 197, 225-226 Swaziland: 87 Switzerland: 22, 37, 55, 263 Thailand: 87 Threat to international peace and security: 18, 90, 251 Three-level typology of states’ duties: 31-32

Trade: 47-48, 93, 98, 108-111, 142, 145 (see also ‘Embargo’) Tsunami: 79, 86, 87 Uganda: 99, 112 Ukraine: 65 UN Guiding Principles on Business and Human Rights: 94, 96, 98-99, 105, 112, 116 Undernourishment (see also ‘Hunger’; ‘Starvation’) Defijinition: 7-8 Economic productivity: 26 Fight against: 141 Unemployment: 119, 123, 137-139, 157, 159 (see also ‘Insurance’) United Kingdom (UK): 20, 38, 55, 137, 160, 205-206, 233 Universal Declaration of Human Rights (UDHR): 24, 32, 55, 124, 138 Unnecessary sufffering: see ‘Necessity’ USA: 20, 39, 48, 51-52, 54, 66, 67, 75, 102, 112, 128, 160, 169, 182, 204, 227 Use of force: 89, 171, 173-176, 230 Vienna Convention on the Law of Treaties (VCLT): 52, 69, 210, 256, 262 Vietnam: 196 Vulnerability:45-46, 135, 137-138, 151-152, 155156, 227-228 Wages: 109, 130, 133, 138, 156-157 Wall in the occupied Palestinian Territory: see ‘Occupied Palestinian Territory’ Water: 5-6, 41-43, 97, 104 (see also ‘Right to water’) Weapon: 173-174, 175, 192 Defijinition: 173-174 Starvation as a Weapon: 5, 15-16, 173-174 Women: 7, 33-34, 39-40, 46, 73, 89-90, 115, 123, 126, 151-152, 153 World War I: 173, 184, 227, 229, 234 World War II: 227, 234 Zimbabwe: 2, 43, 63, 72, 112