On 4th November, 2020, Ethiopian Prime Minister, Abiy Ahmed, launched a coordinated military attack on its own state, Tigray, triggering the onset of a seemingly endless armed conflict between the Ethiopian government and the Tigray People’s Liberation Front (TPLF). This conflict, which has had international implications across the Horn of Africa, affecting Eritrea, Somalia, and Sudan, has resulted in the deaths of thousands of civilians and the displacement of over 2 million people. The crisis does not stop here; Tigray is on the brink of famine with over5.2 million peoplerequiring urgent food assistance. If this current offensive continues, Tigray will face a much worse situation than the ‘Biblical Famine’ of the 1980s. This article ventures to provide an insight into the jurisprudence governing starvation as a war crime and analyses this crisis through the lens of International Humanitarian Law
Understanding the use of starvation as a war crime
Starvation as a method of warfareis a holistic concept encompassing the deliberate deprivation of essential commodities to the basic survival of a human being. These extend not only to food and water but to other indispensable commodities such as healthcare and sanitation. Moreover, ‘starvation crimes’ is used as an umbrella termwhich encompasses a range of criminal acts that have been prohibited under various instruments and conventions covering International Humanitarian Law, International Criminal Law and the Genocide Convention.
Warfare through starvation is often undertaken to pursue political and ethnic ideologies. Demonstrably, in Sudan, the government used starvation to punish non-aligning political communities. Such deprivation weakens the opposition and those loyal to them while keeping others in line with the political and ethnic agenda. This is also evidenced through Syria’s crisis, at the height of which over7 million peoplewere food insecure. Bashar al-Assad ruled with an iron hand and his‘kneel or starve’ regime beleaguered the country for the better part of eight years. The situation in Ethiopia is not dissimilar, with theUN reportingfood being used as a weapon whichallegedly is being used toethnically cleanse the region.
Jurisprudence on Starvation as Warfare
In light of the aforementioned crises across the world, a number of conventions were amended to help prosecute these crimes. Most importantly, theRome Statuteof the ICC was amended,which included starvation as a war crime in ‘Non-International Armed Conflicts’ (NIACs) in Article 8(2)(e)(xix) in the existing definition. This was a landmark act, with the United Nations General Assembly reaffirming its prohibition of starvation as a weapon of warfare in Resolution 74/149 on the right to food.Furthermore, the UN Security Council passed Resolution 2417, which condemns civilian hunger as a form of warfare. It aptly connects armed conflict and caused food insecurity to the looming prospect of famine.Moreover, the Right to Food has been stressed upon and articulated through Article 25 of the Declaration of Human Rights and the African Charter on Human and Peoples’ Rights as well.
The Ethiopian crisis and violation of International Laws
i) Existence of a significant level of hostility between the parties- The Ethiopian crisis has been going on for 8 months with weapons including Surface-to-Air missiles indicating that this crisis is more than just an internal disturbance.
ii)The violence must be carried out by government authorities and one or more non-state armed organisations, or by armed groups themselves- This requirement too stands satisfied in this case as the conflict has been ensuing between the government and the TPLF.
Additionally, a certain threshold must be fulfilled before a NIAC can be established. While the officials have advanced that the present conflict is a “law-enforcement operation”, the fact that there were prolonged and intense conflicts indicates that the war was more than isolated and occasional acts of violence andnot merely an internal disturbance. As a result, this threshold appears to be met in the current conflict, and the appropriate legislations: Common Article 3, Additional Protocol II,to which Ethiopia is a party, will applyas well as Customary International Humanitarian Law (IHL), which applies to a class of states or sometimes universally regardless of them being a member to any treaty. . Under Common Article 3, the Ethiopian government is obliged to ensure that its citizens have the right to food, water, housing and health even during a situation of emergency and armed conflict. Rule 53 of the International Committee of the Red Cross’s Customary IHL strictly prohibits starvation as warfare in any armed conflict. Moreover, it stresses on outlawing starvation of civilians regardless of the motive. This has been reiterated in the decision in Prosecutor v Perisić.
Additionally, Rules 54 and 55 of the IHL posit that destroying goods indispensable to the survival of the civilian population, as well as denying access to humanitarian relief to those in need, including intentionally hindering humanitarian aid constitute war crimes as well.
Inter alia, Article 270(i) of the Ethiopian Penal Code, 2004 specifically prohibits ‘the confiscation, destruction, and rendering useless of foodstuffs, crops, livestock, and other goods essential for survival. Currently in Tigray, the Ethiopian and Eritrean governments are intentionally starving over 350,000 civilians. Furthermore, according to reports, the Ethiopian military has destroyed warehouses and fields, as well as burnt down residences, barns, and grain stores for humans and livestock. Locals have also given accounts of Eritrean soldiers burning crops and conducting door-to-door raids to confiscate food and medicines from households.
Soldiers also raped, tortured, killed and displaced people from their villages. They have also destroyed health facilities and water supplies with reports highlighting the infliction of damage on shops, grocers, petrol pumps and hospitals. Hospitals have been ransacked with Médecins Sans Frontièresfindingonly 13% of them functional with nearly 30% grievously damaged.
Furthermore, Rule 56 of the IHL condemns the restriction of freedom of movement of humanitarian relief personnel. It also states that such impeding will amount to a violation of the statute. The mere presence of relief agencies in an area is not considered as access. In such a grave situation, any interference whatsoever will be considered as an impediment and charged as such. While the Ministry of Peace and the UN came to an accord over the establishment of aid access back in December, the government continues to delay personnel clearances and supplies to the region. The government is stalling on three deals while continuing to make life hard for the aid workers in the country by changing clearance rules on a daily basis.
These acts are, de jure, crimes in their own right, but it is the pattern of them committed together that makes it exceedingly difficult and dangerous for survivors to acquire what they require to preserve life. After examining the existing jurisprudence and analysing the crisis through that lens, it is evident that the Ethiopian federal forces clearly constitute a violation of IHL Rules and other international conventions.. While the starvation is ostensibly driven by ethnic and political goals, these actions run contrary to the Jus in Bello principle as the casualties are disproportionately experienced by civilians rather than the TPLF, against whom it is directed.
What action can be taken?
Despite the Ethiopian federal forces being in violation of numerous national and international laws, it is not surprising that no action has been taken against them. Although Ethiopia is a party to the Geneva Conventions and subject to the Rules of the IHL, they have no provisions for punishment and their scope is only limited to moral and ethical sanctions. Moreover, as Ethiopia is not a party to the ICC nor are there any other conditions present that can trigger an investigation under the Rome Statute, the ICC has, de jure, no jurisdiction over these matters.
But not all is bleak; there are a few potential solutions that can ensure justice for the Tigrayans. In the absence of such ratification of the ICC treaty, the UNSC has powers under 12(3) of the Rome Statute to refer a situation to the ICC to commence investigations. Demonstrably, in 2005, the UNSC referred the Darfur conflict to the ICC despite Sudan not ratifying the Rome Treaty. Moreover, the Security Council has the power to undertake prosecutions outside of the ICC by setting up an ad-hoc court in cases of grave international crimes. Furthermore, such crimes are also subject to universal jurisdiction of states and the UNSC, the UN Human Rights Council and the UN secretary-general can take suomoto cognizance of the issue and set up tribunals to try offenders. This concept of universal jurisdiction imposes a jus cogens obligation on states as well. Finally, Article 1 of the Geneva Conventions can be invoked which convenes a meeting of all high contracting parties to the convention to ensure “respect for the convention”. Something akin to this was previously invoked in 2001 to keep the Israel-Palestine conflict in check.
The death count and casualty statistics are only a minor fraction of the overall picture. The larger world fails to understand the gravity of this crisis, which could potentially blow up to genocidal levels. While there are potential solutions to navigate the diplomatic roadblock to prosecute Ethiopia for its acts, it remains to be seen whether the authorities act in cognizance of humanitarian values and achieve justice for Tigray. The coming months could answer this but whichever way the pendulum swings, it will go down in the annals of history. One thing is certain: Ethiopia has remained out of international scrutiny for quite some time and has created a distressing example of how States can escape penal action by refusing to sign and ratify treaties. This has set an unsettling precedent, leaving behind a pale shadow of international humanitarian laws and virtues.
Title Image : DW.com
This article has been written by Sharun Salvi and Lokesh Soni. The authors study in II year of BA LLB at NALSAR University of Law, Hyderabad and are interested in International Law, Human Rights and Constitutional Law .