APPENDIX G: RULES OF WAR
(reprinted from Human Rights Watch/Africa, Civilian Devastation, 1994)
Starvation of Civilians as a Method of Combat
Starvation of civilians as a method of combat has become illegal as a matter of customary law, as reflected in Protocol II [of 1977 to the 1949 Geneva Conventions]:
Article 14 -- Protection of objects indispensable to the survival of the civilian population
Starvation of civilians as a method of combat is prohibited. It is prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.
What is prohibited is using starvation as "a weapon to annihilate or weaken the population." Using starvation as a method of warfare does not mean that the population has to reach the point of starving to death before a violation can be proved. What is forbidden is deliberately "causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies."
This prohibition on starving civilians "is a rule from which no derogation may be made."90 No exception was made for imperative military necessity, for instance.
Article 14 lists the most usual ways in which starvation is brought about. Specific protection is extended to "objects indispensable to the survival of the civilian population," and a non-exhaustive list of such objects follows: "foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works." The article prohibits taking certain destructive actions aimed at these essential supplies, and describes these actions with verbs which are meant to cover all eventualities: "attack, destroy, remove or render useless."
The textual reference to "objects indispensable to the survival of the civilian population"
does not distinguish between objects intended for the armed forces and those intended for civilians. Except for the case where supplies are specifically intended as provisions for combatants, it is prohibited to destroy or attack objects indispensable for survival, even if the adversary may benefit from them. The prohibition 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. 91
Attacks on objects used "in direct support of military action" are permissible, however, even if these objects are civilian foodstuffs and other objects protected under article 14. This exception is limited to the immediate zone of actual armed engagements, as is obvious from the examples provided of military objects used in direct support of military action: "bombarding a food-producing area to prevent the army from advancing through it, or attacking a food-storage barn which is being used by the enemy for cover or as an arms depot, etc."92
The provisions of Protocol I, article 54 are also useful as a guideline to the narrowness of the permissible means and methods of attack on foodstuffs.93 Like article 14 of Protocol II, article 54 of Protocol I permits attacks on military food supplies. It specifically limits such attacks to those directed at foodstuffs intended for the sole use of the enemy's armed forces. This means "supplies already in the hands of the adverse party's armed forces because it is only at that point that one could know that they are intended for use only for the members of the enemy's armed forces.@94 Even then, the attacker cannot destroy foodstuffs "in the military supply system intended for the sustenance of prisoners of war, the civilian population of occupied territory or persons classified as civilians serving with, or accompanying, the armed forces."95
Proof of Intention to Starve Civilians
Under article 14, what is forbidden are actions taken with the intention of using starvation as a method or weapon to attack the civilian population. Such an intention may not be easy to prove and most armies will not admit this intention. Proof does not rest solely on the attacker's own statements, however. Intention may be inferred from the totality of the circumstances of the military campaign.
Particularly relevant to assessment of intention is the effort the attacker makes to comply with the duties to distinguish between civilians and military targets and to avoid harming civilians and the civilian economy.96 If the attacker does not comply with these duties, and food shortages result, an intention to attack civilians by starvation may be inferred.
The more sweeping and indiscriminate the measures taken which result in food shortages, when other less restrictive means of combat are available, the more likely the real intention is to attack the civilian population by causing it food deprivation. For instance, an attacker who conducts a scorched earth campaign in enemy territory to deprive the enemy of sources of food may be deemed to have an intention of attacking by starvation the civilian population living in enemy territory. The attacker may not claim ignorance of the effects upon civilians of such a scorched earth campaign, since these effects are a matter of common knowledge and publicity. In particular, relief organizations, both domestic and international, usually sound the alarm of impending food shortages occurring during conflicts in order to bring pressure on the parties to permit access for food delivery and to raise money for their complex and costly operations.
The true intentions of the attacker also must be judged by the effort it makes to take prompt remedies, such as permitting relief convoys to reach the needy or itself supplying food to remedy hunger. An attacker who fails to make adequate provision for the affected civilian population, who blocks access to those who would do so, or who refuses to permit civilian evacuation in times of food shortage, may be deemed to have the intention to starve that civilian population.
90 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers: Geneva 1987), p. 1456.
91 Ibid., pp. 1458-59.
92 Ibid., p. 657. Another authority gives the following examples of direct support: "an irrigation canal used as part of a defensive position, a water tower used as an observation post, or a cornfield used as cover for the infiltration of an attacking force." Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts (Martinus Nijhoff Publishers: The Hague/Boston/London, 1982), p. 341.
93 Article 54 of Protocol I is the parallel, for international armed conflicts, to article 14, Protocol II in its prohibition on starvation of civilians as a method of warfare.
94 Bothe, New Rules for Victims of Armed Conflict, p. 340.
95 Ibid., pp. 340-41.
96 Civilians are not legitimate military targets; this is expressly forbidden by U.N. General Assembly Resolution 2444, Respect for Human Rights in Armed Conflicts, United Nations Resolution 2444, G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18) p. 164, U.N. Doc. A/7433 (1968). The duty to distinguish at all times between civilians and combatants, and between civilian objects and military objects, includes the duty to direct military operations only against military objectives.