By Thomas Verfuss in The Hague
Is starving civilians in a civil war “less bad” than starving civilians in a war between states?
Switzerland proposes to make the intentional starvation of civilians as a method of warfare a crime in all armed conflicts. Until now, according to Article 8 of the Rome Statute, the founding treaty of the International Criminal Court (ICC), intentional starvation of civilians is a crime only when committed in an international armed conflict.
The Swiss proposal, on the table during the session of the Assembly of States Parties (ASP) to the Rome Statute in December 2019, seeks to put an end to an artificial distinction: the laws of war tend to protect civilians and prisoners of war only against the military of other states, not against their own army. States traditionally tend to protect their sovereignty against foreign or international interference. In the 1990s, during the early years of international criminal justice, the chief prosecutor of an international tribunal once quipped: “It is not forbidden for a state to kill its own citizens.”
A first step to protect vulnerable human beings, like civilians, prisoners of war and the shipwrecked, also during civil wars was done in 1949 when the Geneva Conventions were reformed and common Article 3 was introduced, with at least some minimum guarantees.
As the International Committee of the Red Cross (ICRC), guardian and
interpreter of international humanitarian law, notes:
“Among the many important advances in international humanitarian law wrought by the adoption of the 1949 Geneva Conventions, Article 3 stands out in particular. With its inclusion, States agreed for the first time on regulating, in an international treaty framework, what they described as ‘armed conflict not of an international character’.Common Article 3 represented one of the first provisions of international law that dealt with what was at the time considered by States as being exclusively their domestic affair. The provision is common to the four Geneva Conventions.” 
After a shy beginning in 1949, additional steps were taken in 1977, with
additional protocols to the Geneva Conventions, to improve the protection of
civilians also in civil wars. But as the ICRC notes:
“The fear that the Protocol might affect State sovereignty, prevent governments from effectively maintaining law and order within their borders and that it might be invoked to justify outside intervention led to the decision of the Diplomatic Conference at its fourth session to shorten and simplify the Protocol. Instead of the 47 Articles proposed by the ICRC the Conference adopted only 28. “
When the Geneva Conventions were applied at the first contemporaneous international court, the UN tribunal for the former Yugoslavia (ICTY) set up in 1993, prosecutors often struggled to prove the existence of an international armed conflict, because certain actions were a crime in international wars, but were not punishable in a civil war.
But still, though they could observe the ICTY cases, diplomats at the conference in 1998 finalising the Rome Statute chose to maintain the distinction.
These days the world sees many civil wars where terrible atrocities are committed in countries like Yemen and Syria, where hunger is an important and tragic part of the daily lives of many citizens. Using starvation as an intentional method of warfare should be a crime in all armed conflicts, no matter whether it is used in an international or internal character. The Swiss proposal is a first step to eliminate an artificial and unjustified distinction.
The FIDH, a federation of leading human rights organisations that has
done a lot of work on the francophone ICC situation countries in Africa,
supports the Swiss amendment and notes: “The absence of the crime of starvation
in non-international armed conflicts from Article 8 of the Rome Statute,
despite its recognition as a crime during an international armed conflict,
creates an unjustifiable legal vacuum. This is deeply troubling as instances of
starvation frequently occur in conflicts that are non-international in nature.
Examples of starvation being used as a weapon of war are numerous and growing
in their magnitude and devastating effects on already vulnerable populations.”