The Netherlands accepts Starvation Amendment: One Year On
GRC congratulates the Netherlands on their recent acceptance of the Rome Statute amendment extending the application of starvation as a war crime to non-international armed conflicts (NIAC), in line with customary international law and international consensus. The Dutch formalised their acceptance almost exactly one year to the date of the anniversary of the historic adoption of the amendment.
On 6 December 2019, the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) unanimously voted to amend the Rome Statute to include starvation as a war crime in NIACs in the form of Article 8(2)(e)(xix), tabled by Switzerland. In honour of this first anniversary, GRC celebrates this momentous achievement. We urge States to ratify the amendment and harmonise their domestic legislation to enable effective investigation and prosecution of starvation in NIACs as envisioned by UNSC 2417.
A background to the amendment
Despite strong evidence that customary international law prohibits intentional starvation of civilians in all conflict designations, prior to amendment the Rome Statute prohibition on using starvation as a method of warfare against civilians applied only to ‘serious violations of the laws and customs applicable in international armed conflict’. To remedy this, in August 2019, the Government of Switzerland deposited with the Secretary-General of the United Nations a proposal to amend Article 8 of the Rome Statute to include starvation as a war crime in the context of conflicts not of an international character, noting that ‘starving civilians is already a war crime under the Rome Statute in international armed conflicts. However, the vast majority of contemporary armed conflicts are non-international in nature.’ The substance of the proposal accorded with international law including with the international humanitarian law (IHL) framework for the protection of civilians in conflict. It also accorded with UNSC Resolution 2417 which did not provide for any distinction between international armed conflicts (IACs) and NIACs when it condemned the use of starvation as a method of warfare on 24 May 2018.
The amendment of the Rome Statute to include Article 8(2)(e)(xix)
In a remarkable accomplishment that signalled to those using starvation as a method of warfare in any conflict that they cannot continue to act with impunity, on 6 December 2019 the ASP to the Rome Statute of the ICC voted unanimously by Resolution ICC-ASP/18/Res.5 to amend Rome Statute Article 8 to include Article 8(2)(e)(xix), which provides in the context
of a NIAC:
Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies.
In addition, the following was inserted into the Elements of Crimes – ICC:
(i) The perpetrator deprived civilians of objects indispensable to their survival.
(ii) The perpetrator intended to starve civilians as a method of warfare.
(iii) The conduct took place in the context of and was associated with an armed conflict not of an international character.
(iv) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
By bringing starvation as a method of warfare in NIACs within reach of prosecution before the ICC, the ground-breaking achievement served as a crucial step towards closing the accountability gap created by the distinction between the two conflict designations. It also contributed to the coherence and harmonisation of the Rome Statute, to raising public awareness of the preventability of starvation and to rendering deliberate starvation morally
Acceptance of the amendment
While the vote of the ASP to amend the Rome Statute is highly significant, it is not the end of the journey towards effective investigation and prosecution of starvation as a war crime in NIACs. It is incumbent on States Parties to consent to be bound to the amendment through the deposit of instruments of ratification or acceptance with the Secretary-General of the United Nations, as the depositary of the Statute. Under Article 121(5) of the Rome Statute:
Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.
This means that the Court will only have jurisdictional competence over the war crime of starvation in NIACs when committed by nationals or on the territory of ICC States Parties that ratify the amendment, and then only from one year after the date of ratification. Exempted from this jurisdictional regime is the situation where a national of a State Party that has not accepted the amendment is alleged to have committed the war crime of starvation in the context of a NIAC on the territory of a State Party that has accepted the amendment. The Court will not have jurisdictional competence where the war crime of starvation has been committed in a NIAC by nationals, or on the territory, of States that are Party to the Statute but do not ratify or accept the amendment. Nor, arguably, will the Court have such competence in respect of nationals (or the territory) of Non-Party States. An exception is in the case of Security Council referral.
Security Council referral
The Security Council could trigger the jurisdiction of the ICC in respect of any NIAC through passage of a Resolution referring the situation to the Court, acting under Chapter VII of the Charter of the United Nations. Such a referral would be effective as per Article 13(b) of the Rome Statute, without regard to whether any State has ratified the amendment. 10 It must however be noted that Security Council Resolutions are subject to veto by the permanent members of the UNSC, each of which are likely to act in accordance with their own national interests that may not necessarily align with the pursuit of accountability for starvation as a war crime in the context of any particular NIAC. 11 Where a resolution for referral is vetoed by one of these permanent members, no resolution for referral will pass and ICC jurisdiction will fail unless it exists on the basis of ratification/acceptance in accordance with the jurisdictional regime described in the preceding section.
Wide ratification (and legislative harmonisation) is key to the prevention, prohibition and punishment of the war crime of starvation, and thus to the protection of civilians from this atrocity. New Zealand, Andorra and the Netherlands have been the first States to ratify the amendment. 12 GRC urges all ICC States Parties promptly to follow suit.
GRC possesses unrivalled global expertise and granular knowledge on the crime of starvation and right to food violations, derived from a dedicated starvation portfolio established in 2017.
GRC collaborated directly with the Swiss throughout 2019 to actively support the Starvation Amendment in the context of its ‘Accountability for Mass Starvation: Testing the limits of the law’ project, in conjunction with the World Peace Foundation and generously supported by the Netherlands Ministry of Foreign Affairs. GRC is privileged to have worked alongside Switzerland and the Netherlands on these issues as they tirelessly and deftly achieved a remarkable international consensus at a time where there is more division than ever. In Phase II of its project, GRC will actively support ratification of the Rome Statute amendment and legislative harmonisation across States Parties, ensuring that the ICC Rome Statute regime is not fragmented. It will lead Phase II of the Project supported by an expert steering committee including World Peace Foundation Executive Director Alex de Waal. For more information about ‘Accountability for Mass Starvation: UNSC 2417 Implementation Mechanisms’ or GRC’s starvation work to date, please visit: GRC’s starvation project page and www.starvationaccountability.org or contact our team of experts at: firstname.lastname@example.org.