Prosecuting Starvation under International Criminal Law

Abstract

Historically, international criminal tribunals have not included a specific provision criminalizing the use of starvation within their respective statutes or founding legal documents. In light of this, and after clarifying what material/objective and mental/subjective elements characterize starvation, the present article seeks to explore whether it can be adjudicated as a crime against humanity or as an act of genocide and how this could be accomplished within the existing framework of international criminal law. In this respect, it is submitted that the general absence of an explicit reference to a crime of starvation in the statutes of international criminal tribunals is not a legal bar to the prosecution of the corresponding behaviour. Furthermore, this article briefly considers starvation as a war crime, particularly pursuant to Article 8(2)(b)(xxv) of the International Criminal Court (ICC) Statute — which criminalizes starvation in international armed conflicts at the ICC — and the conspicuous absence of a corresponding and parallel provision that would criminalize starvation as a war crime in non-international armed conflicts.

Hunger

“…Especially useful is the 41-page annex that includes analysis of starvation in commissions, inquiries and fact-finding missions, courts and tribunals around the world. There has been enormous progress in the definition of the crime of starvation especially after its inclusion in the Rome Statute of the Interna-tional Criminal Court, although accountability and prosecutions of perpetrators remain a complex issue (Akande & Gillard, 2019;D'Alessandra & Gillett, 2019;Hutter, 2019;Marcus, 2003;Sheldon, 2012;Ventura, 2019;Wayne Jordash et al, 2019).…”