Table of contents:
3. The perpetrator deprived civilians of objects indispensable for their survival.
P.1. Evidence of the destruction of cropland/agricultural areas.
P.1.1. Evidence of the destruction of crops by defoliants.
P.1.2. Evidence of the burning of fields and harvests.
P.2. Evidence of bombing markets.
P.3. Evidence of the deployment of landmines in agricultural areas.
P.4. Evidence of the deployment of landmines in irrigation works.
P.6. Evidence of attacking the water supplies.
P.6.1. Evidence of the destruction of water-treatment stations.
P.6.2. Evidence of poisoning/polluting drinking water supplies.
P.7. Evidence of a siege or a blockade.
P.8. Evidence of the forced requisition of food supplies.
3.2. The perpetrator impeded relief supplies.
P.9. Evidence of preventing the aid agencies from entering the country.
P.10. Evidence of impeding the passage of humanitarian convoys.
P.10.1. Evidence of refusing access to a certain region.
P.10.2. Evidence of putting roadblocks in the way of relief convoys.
P.10.3. Evidence of attacking or intimidating a relief convoy.
P.10.4. Evidence of air strikes against aid convoys.
P.11. Evidence of confiscating relief.
P.12. Evidence of closing/shelling an airport.
P.13. Evidence of a siege or blockade.
P.14. Evidence of putting a tax on the delivery of relief.
P.15. Evidence of abuse in the practice of distributing relief.
P.15.1. Evidence of conscripting by force into the army persons who came to get relief.
P.15.2. Evidence of detaining persons who came to get relief.
Element:
3. The perpetrator deprived civilians of objects indispensable for their survival.
A. Evidentiary comment:
The wording of article 8(2)(b)(xxv), and in particular, the term starvation, has to be interpreted broadly, and should not only refer to the deprivation of food. According to Michael Cottier, "[o]bjects indispensable for survival are basic objects which certainly include food and clean water. The notion should also extend to "agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works" (Article 54 para. 2 First Add. Prot.) and other facilities necessary to produce, harvest, process or stock foodstuffs, to medical supplies (The Netherlands East Indies Statute Book Decree No.44 of 1946 considered a war crime the "[i]ntentional withholding of medical supplies from civilians", LAW REPORTS, Vol. XI, 94) and to basic shelter and clothing indispensable to survival as a result of climate and other circumstances (See C. Pilloud/J. de Preux, Article 54 Additional Protocol I, ICRC Commentary, margin Nos 2102 and 2103). Objects indispensable to the survival of civilians are protected whether in terrory held by the party to the conflict or in terroritory of the adversary (C. Pilloud/ J. de Preux, Article 54 Additional Protocol I, ICRC Commentary, margin No. 2113).". (Michael Cottier in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, para. 219).
A. Evidentiary comment:
This actus reus is drawn from article 54(2) of the First Additional Protocol, describing the most usual ways in which starvation may occur. According to Pilloud and de Preux, "the verbs "attack", "destroy", "remove" and "render useless" are used in order to cover all possibilities, including pollution, by chemicals or other agents, of water reservoirs, or destruction of crops by defoliants, and also because the verb "attack" refers, either in offence or defence, to acts of violence against the adversary." (C. Pilloud/J. de Preux, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para.2101).
It is also important to point out that article 54 of the First Additional Protocol limits the prohibition of attacks to means of subsistence that serve the civilian population only. However, attacks on military resources may be legitimate. Lastly, attacks on resources used by both civilians and hostile army forces are legitimate only if they are justified by military necessity (C. Pilloud/J. de Preux, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 2104). In case of doubt, it is to be assumed that the objects in question are intended for the civilian population. (Werle, Principles of International Criminal Law, para. 1065).
P.1. Evidence of the destruction of cropland/agricultural areas.
A. Legal source/authority and evidence:
Gerhard Werle, Principles of International Criminal Law (2005), para. 1085:
"Preventing production of food by destroying cropland, agricultural areas or other facilities is also covered if the populations nutrition would be endangered by these actions682. This criminalizes so-called "scorched earth" tactics, in which a passing army destroys all food supplies"683.
"682 These examples are enumerated in Additional Protocol I, Art. 54(2); on the history of the Elements of Crimes, in which the broad concept was originally to be emphasized in a separate footnote, see D. Frank, in R.S. Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), p. 203.
693According to Additional Protocol I, Art. 54(5), however, this does not affect cases in which one party to an armed conflict clears a part of its own territory. In case of "imperative military necessity", scorched earth tactics also continue to be permissible under the provisions of Additional Protocol I, see L.C. Green, The Contemporary Law of Armed Conflict, 2nd edn. (2000), p. 144; C. Pilloud and J. de Preux, in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.) Commentary on the Additional Protocols (1987) marginal nos. 2118 et seq.; W.A. Solf, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4 (2000), p. 414 at p. 415; for a sceptical view, see K. Kittichaisaree, International Criminal Law (2001), p. 186."
P.1.1. Evidence of the destruction of crops by defoliants.
A. Legal source/authority and evidence:
C. Pilloud/J. de Preux, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 2101:
"[t]he verbs "attack", "destroy", "remove" and "render useless" are used in order to cover all possibilities, including pollution, by chemicals or other agents, of water reservoirs, or destruction of crops by defoliants, [ ]."
[B. Evidentiary comment:]
P.1.2. Evidence of the burning of fields and harvests.
A. Legal source/authority and evidence:
Guatemala: Memory of Silence, Report of the Commission for Historical Clarification, February 1999 (online: shr.aaas.org/guatemala/ceh/report/english/toc.html), Conclusions and Recommendations, para. 116:
"116. The investigation has also proved that the killings, especially those that were indiscriminate massacres, were accompanied by the razing of villages. This was most significant in the Ixil region, where between 70% and 90% of villages were razed. Also, in the north of Huehuetenango, in Rabinal and in Zacualpa, whole villages were burnt, properties were destroyed and the collectively worked fields and harvests were also burnt, leaving the communities without food."
[B. Evidentiary comment:]
P.2. Evidence of bombing markets.
A. Legal source/authority and evidence:
D. Marcus, "Famine Crimes in International Law", 97 A.J.I.L. 245, p. 257:
"Moreover, by killing livestock and obliterating crops, they [the Dergue authorities in Ethiopia], they destroyed farmers resources that could have been traded or consumed. 101Bombing of markets, aimed at breaking up economic networks in rebel-controlled areas, had the predictable effect of making trade impossible. 102"
"101CLAY and HOLCOMB, supra note 85, at 194.
102 DE WAAL, supra note 3, at 118; see also Macrae and Zwi, supra note 96, at 305-306."
P.3. Evidence of the deployment of landmines in agricultural areas.
A. Legal source/authority and evidence:
Jelena Pejic, "The Right to Food in Situations of Armed Conflict: The Legal Framework", IRRC December 2001, vol. 83, p.1099:
"The deployment of landmines in agricultural areas [ ] with the specific purpose of precluding their use for the sustenance of the civilian population would likewise constitute a violation of that prohibition [to attack, destroy, remove, or render useless objects that are indispensable to the survival of the civilian population]."
P.4. Evidence of the deployment of landmines in irrigation works.
A. Legal source/authority and evidence:
Jelena Pejic, "The Right to Food in Situations of Armed Conflict: The Legal Framework", IRRC December 2001, vol. 83, p.1099:
"The deployment of landmines [ ] in irrigation works with the specific purpose of precluding their use for the sustenance of the civilian population would likewise constitute a violation of that prohibition [to attack, destroy, remove, or render useless objects that are indispensable to the survival of the civilian population]."
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1160:
"In 1998, in a statement by its President regarding the situation in the DRC, the UN Security Council recalled "the unacceptability of the destruction or rendering useless of objects indispensable to the survival of the civilian population, and in particular of using cuts in the electricity and water supply as a weapon against the population."279
"279 UN Security Council, Statement by the President, UN Doc. S/PRST/1998/26, 31 August 1998, p.1."
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1160:
"In 1993, in a statement by its President regarding the situation in Sarajevo, the UN Security Council stated that "it demands an end to the disruption of public utilities (including water, electricity, fuel and communications) by the Bosnian Serb party" 278.
"278 UN Security Council, Statement by the President, UN Doc. S/26134, 22 July 1993, p.1."
P.6. Evidence of attacking the water supplies.
P.6.1. Evidence of the destruction of water-treatment stations.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1161:
"In 1993, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights denounced the destruction of water-treatment situation in Bosnia and Herzegovina, which had exposed the civilian population to dehydratation and disease284"
"284 UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the former Yougoslavia, Press Release HR/3462, 30 July 1993, §6."
[B. Evidentiary comment:]
P.6.2. Evidence of poisoning/polluting drinking water supplies.
A. Legal source/authority and evidence:
C. Pilloud/J. de Preux, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para.2101:
"[t]he verbs "attack", "destroy", "remove" and "render useless" are used in order to cover all possibilities, including pollution, by chemicals or other agents, of water reservoirs, or destruction of crops by defoliants, [ ]."
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) article 8, para. 220:
"The Protocols list of verbs is intended to avoid possible loopholes386 and to include actions like destruction of crops by defoliants or the particularly egregious starvation of civilians by poisoning wells or springs387."
"386See C. Pilloud/J. de Preux, Article 54 Additional Protocol I, ICRC COMMENTARY, margin No. 2101.
387 As early as 1646, Grotius considered the poisoning of waters as forbidden by the laws of nations, H. Grotius, Rights of War, Bk. III, Chapter 4, Section XVI 652-653. Poisoning of wells has also been considered a violation of the laws and customs of war by the Responsibilities Commission of the 1919 Paris Peace Conference, Number 32 of the lost of violations of the laws and customs of war, 14 AM. J. INTL 115 (1920), and by national laws, see, for instance, the Australian Law Concerning Trials of War Criminals by Military Courts, LAW REPORTS, vol. V, 96."
[B. Evidentiary comment:]
P.7. Evidence of a siege or a blockade.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1141:
"In a resolution adopted in 1993 on a comprehensive political settlement of the situation in Bosnia and Herzegovina, the UN Security Council expressed its "concern" about the continuing siege of Sarajevo and strongly condemned "the disruption of public utilities (including water, electricity, fuel and communications)".151
"151 UN Security Council, Res. 859, 24 August 1993, Preamble."
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p.366:
"Theses rules obviously have an effect on sieges and blockades which cannot be undertaken for the purpose of starving the population or denying their essential supplies. This is illustrated by the rules relating to blockade in naval warfare in the San Remo Manual:
"6San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press, Cambridge, 1995), para. 102."
P.8. Evidence of the forced requisition of food supplies.
A. Legal source/authority and evidence:
D. Marcus, "Famine Crimes in International Law", 97 A.J.I.L. 245, p. 253:
"The process of requisitioning illustrates the extent to which a state, by eradicating individuals entitlements, can manufacture starvation. Authorities were ordered to take not only every last ounce of grain but anything that might be eaten or traded for food. Any resistance met with a brutal and ruthless response. Conquest describes the requisition brigades modus operandi:
"63CONQUEST, supra note 1, at 229-30."
3.2. The perpetrator impeded relief supplies.
A. Evidentiary comment:
This is the second, alternative mode of committing the offence under article 8(2)(b)(xxv). The relief supplies include "food, water drinking water installations, blankets, clothing, other objects to protect against cold and weather, and medical supplies". (Michael Cottier in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, para. 222). The following provisions of the Geneva Conventions and their Protocols address relief supplies:
General provisions relating to relief in favour of the civilian population:
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, articles 23, 70 and 71:
Art. 23. Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make such permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, articles 70-71:
Art 70. Relief actions
1. If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection.
2. The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party.
3. The Parties to the conflict and each High Contracting Party which allows the passage of relief consignments, equipment and personnel in accordance with paragraph 2:
(a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted;
(b) may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power;
(c) shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned.
4. The Parties to the conflict shall protect relief consignments and facilitate their rapid distribution.
5. The Parties to the conflict and each High Contracting Party concerned shall encourage and facilitate effective international co-ordination of the relief actions referred to in paragraph 1.
Art 71. Personnel participating in relief actions
1. Where necessary, relief personnel may form part of the assistance provided in any relief action, in particular for the transportation and distribution of relief consignments; the participation of such personnel shall be subject to the approval of the Party in whose territory they will carry out their duties.
2. Such personnel shall be respected and protected.
3. Each Party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel referred to in paragraph 1 in carrying out their relief mission. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted.
4. Under no circumstances may relief personnel exceed the terms of their mission under this Protocol. In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties. The mission of any of the personnel who do not respect these conditions may be terminated.
Relief to civilian population in occupied territories:
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, article 55:
Art. 55. To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.
The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods.[ ]
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, articles 59-62:
Art. 59. If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.
Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.
A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.
Art. 60. Relief consignments shall in no way relieve the Occupying Power of any of its responsibilities under Articles 55, 56 and 59. The Occupying Power shall in no way whatsoever divert relief consignments from the purpose for which they are intended, except in cases of urgent necessity, in the interests of the population of the occupied territory and with the consent of the Protecting Power.
Art. 61. The distribution of the relief consignments referred to in the foregoing Articles shall be carried out with the cooperation and under the supervision of the Protecting Power. This duty may also be delegated, by agreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International Committee of the Red Cross or to any other impartial humanitarian body.
Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties unless these are necessary in the interests of the economy of the territory. The Occupying Power shall facilitate the rapid distribution of these consignments.
All Contracting Parties shall endeavour to permit the transit and transport, free of charge, of such relief consignments on their way to occupied territories.Art. 62. Subject to imperative reasons of security, protected persons in occupied territories shall be permitted to receive the individual relief consignments sent to them."
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, article 69:
Art 69. Basic needs in occupied territories
1. In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship.
2. Relief actions for the benefit of the civilian population of occupied territories are governed by Articles 59, 60, 61, 62, 108, 109, 110 and 111 of the Fourth Convention, and by Article 71 of this Protocol, and shall be implemented without delay.
Special rules on relief of detained persons:
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, articles 108 and 109:
108. Internees shall be allowed to receive, by post or by any other means, individual parcels or collective shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and objects of a devotional, educational or recreational character which may meet their needs. Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the present Convention.
Should military necessity require the quantity of such shipments to be limited, due notice thereof shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any other organization giving assistance to the internees and responsible for the forwarding of such shipments.
The conditions for the sending of individual parcels and collective shipments shall, if necessary, be the subject of special agreements between the Powers concerned, which may in no case delay the receipt by the internees of relief supplies. Parcels of clothing and foodstuffs may not include books. Medical relief supplies shall, as a rule, be sent in collective parcels.
Art. 109. In the absence of special agreements between Parties to the conflict regarding the conditions for the receipt and distribution of collective relief shipments, the regulations concerning collective relief which are annexed to the present Convention shall be applied.
The special agreements provided for above shall in no case restrict the right of Internee Committees to take possession of collective relief shipments intended for internees, to undertake their distribution and to dispose of them in the interests of the recipients. Nor shall such agreements restrict the right of representatives of the Protecting Powers, the International Committee of the Red Cross, or any other organization giving assistance to internees and responsible for the forwarding of collective shipments, to supervise their distribution to the recipients.
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, articles 72 and 74:
Art 72. Prisoners of war shall be allowed to receive by post or by any other means individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue their studies or their cultural activities.
Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the present Convention.
The only limits which may be placed on these shipments shall be those proposed by the Protecting Power in the interest of the prisoners themselves, or by the International Committee of the Red Cross or any other organization giving assistance to the prisoners, in respect of their own shipments only, on account of exceptional strain on transport or communications.
The conditions for the sending of individual parcels and collective relief shall, if necessary, be the subject of special agreements between the Powers concerned, which may in no case delay the receipt by the prisoners of relief supplies. Books may not be included in parcels of clothing and foodstuffs. Medical supplies shall, as a rule, be sent in collective parcels.
Art 74. All relief shipments for prisoners of war shall be exempt from import, customs and other dues.
Correspondence, relief shipments and authorized remittances of money addressed to prisoners of war or despatched by them through the post office, either direct or through the Information Bureaux provided for in Article 122 and the Central Prisoners of War Agency provided for in Article 123, shall be exempt from any postal dues, both in the countries of origin and destination, and in intermediate countries.
If relief shipments intended for prisoners of war cannot be sent through the post office by reason of weight or for any other cause, the cost of transportation shall be borne by the Detaining Power in all the territories under its control. The other Powers party to the Convention shall bear the cost of transport in their respective territories. In the absence of special agreements between the Parties concerned, the costs connected with transport of such shipments, other than costs covered by the above exemption, shall be charged to the senders.
The High Contracting Parties shall endeavour to reduce, so far as possible, the rates charged for telegrams sent by prisoners of war, or addressed to them.
P.9. Evidence of preventing the aid agencies from entering the country.
A. Legal source/authority and evidence:
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"There are different means of preventing aid from reaching potential beneficiaries. A government may, for example, stop aid agencies from entering the country at all and can thus ensure that no assistance is given. [ ]"
D. Marcus, "Famine Crimes in International Law", 97 A.J.I.L. 245, p. 253 and 255:
"In spite of pleas for assistance, and in spite of offers of help, Stalin allowed absolutely no food imports or food aid into the affected region. 68"
"68FRANK CHALK and KURT JONASSOHN, THE HISTORY AND SOCIOLOGY OF GENOCIDE: ANALYSES AND CASE STUDIES 306 (1990)."
"[ ] the famine offers an illustration of both first- and second-degree famine crimes. The reckless imposition of faminogenic economic policy in spite of significant evidence that it would lead to disaster speaks to the latter; the purposeful worsening of the famine by interfering with peoples abilities to cope with shortages through a myriad of rights violations underscores the former."
P.10. Evidence of impeding the passage of humanitarian convoys.
P.10.1. Evidence of refusing access to a certain region.
A. Legal source/authority and evidence:
Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 28:
"28. In March 1995, Radovan Karadzic, President of Republika Srpska ("RS"), reacting to pressure from the international community to end the war and ongoing efforts to negotiate a peace agreement, [FN47]. issued a directive to the VRS concerning the long-term strategy of the VRS forces in the enclave. The directive, known as "Directive 7", specified that the VRS was to:
"47. P 425."
"48. P 425, p. 10."
Blocking aid convoys was also a part of the plan:
"49 Ibid., p. 14."
Just as envisaged in this decree, by mid 1995, the humanitarian situation of the Bosnian Muslim civilians and military personnel in the enclave was catastrophic. In early July 1995, a series of reports issued by the 28th Division reflected the urgent pleas of the ABiH forces in the enclave for the humanitarian corridor to be deblocked and, when this failed, the tragedy of civilians dying from starvation. [FN50]"
"50. P 898 (Requesting that constant efforts be made to deblock the humanitarian corridor); P 899 (dated 6 July 1995, reporting that "The situation continues to be exceptionally difficult. The food convoy announced for today has not arrived. The first people to die of hunger in the area of Srebrenica after the demilitarisation were registered today."); P 900 (dated 7 July 1995, reporting that "The humanitarian situation is worrying. Today more civilians have been registered as having died from hunger...''); P 901 (dated 8 July 1995 reporting that "This situation is also dramatic and practically hopeless. The civilian population is dying of hunger...we will very soon be forced to abandon this area because of a lack of food."; P 902 (dated 9 July 1995, reporting that the "humanitarian situation is catastrophic...'')."
UN Commission on Human Rights, Special Rapporteur on the Situation of Human rights in the former Yugoslavia, Report, UN Doc. E/CN.4/1993/50, 10 February 1993, §114:
"[ ] Humanitarian organizations are providing aid under very difficult conditions. The problem of access is particularly acute. Some places have been inaccessible to aid convoys owing to snow or bad roads; others have been made inaccessible by the refusal of the parties to the conflict to allow convoys to pass."
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1216:
"In April 1993, in a statement by its President regarding the situation in Bosnia and Herzegovina, the UN Security Council stated that it was:
The Council added that the blocking of UN humanitarian relief efforts was directly related to the practice of "ethnic cleansing".596
"596UN Security Council, Statement by the President, UN Doc. S/25520, 3 April 1993, p.1."
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"[ ] Once humanitarian organizations are working in the country, a government may use or rather abuse its above-mentioned right to supervise relief consignments by, for example, searching convoys for an excessive length of time. Both governmental and non-governmental forces may confiscate relief or refuse permission to access a certain region. [ ]"
[B. Evidentiary comment:]
P.10.2. Evidence of putting roadblocks in the way of relief convoys.
A. Legal source/authority and evidence:
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"[ ] They can also prevent aid from reaching the victims by putting up roadblocks, [ ]."
[B. Evidentiary comment:]
P.10.3. Evidence of attacking or intimidating a relief convoy.
A. Legal source/authority and evidence:
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"A very effective means of impeding the work of humanitarian organizations is simply to state that their security cannot be guaranteed. Any actor- State agents, rebel forces, other non-governmental groups, bandits, or civilians could obstruct the delivery of assistance by intimidating aid workers or drivers, or by attacking relief convoys, ships or aircrafts, or aid personnel. In some cases, snipers have attacked people on their way to collect humanitarian assistance."
[B. Evidentiary comment:]
P.10.4. Evidence of air strikes against aid convoys.
A. Legal source/authority and evidence:
D. Marcus, "Famine Crimes in International Law", 97 A.J.I.L. 245, p. 258:
"The Ethiopian government engaged in this illicit conduct, keeping the aid that poured into the country from reaching affected populatins Tigray and Wollo. The threat of air strikes kep convoys off the road and food aid immobilized. 107"
"107Macrae and Zwi, supra note 96, at 306."
[B. Evidentiary comment:]
P.11. Evidence of confiscating relief.
A. Legal source/authority:
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"[ ]Both governmental and non-governmental forces may confiscate relief or refuse permission to access a certain region. [ ]"
P.12. Evidence of closing/shelling an airport.
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1215:
"In a resolution on Bosnia and Herzegovina adopted in 1995, the UN Security Council declared itself "gravely concerned that the regular obstruction of deliveries of humanitarian assistance, and the denial of the use of Sarajevo airport, by the Bosnian Serb side threaten the ability of the United Nations in Bosnia and Herzegovina to carry out its mandate".589
"589 UN Security Council, Res. 998, 16 June 1995, preamble."
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
" [ ] They can also prevent aid from reaching the victims by putting up roadblocks, throught the closure or constant shelling of airports, [ ]."
P.13. Evidence of a siege or blockade.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 1161:
"In 1994, in a statement by its President regarding the situation in Bosnia and Herzegovina, the UN Security Council demanded that "the Bosnian Serb party and the Bosnian Croat party allow forthwith and without conditions passage to all humanitarian convoys [to the besieged town of Maglaj]".469
469 UN Security Council, Statement by the President, UN Doc. S/PRST/1994/11, 14 March 1994, p.1."
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"[ ]. They can also prevent aid from reaching the victims by putting up roadblocks, throught the closure or constant shelling of airports, through a sea blockade or by besieging a town. [ ]"
P.14. Evidence of putting a tax on the delivery of relief.
A. Legal source/authority and evidence:
Christia Rottenseiner, "The Denial of Humanitarian Assistance as a Crime under International Law", International Review of the Red Cross, No. 845, p.555-582:
"[ ] Sometimes, unacceptable conditions are imposed, for example the payment of taxes for the delivery of assistance or the demand that the same amount of aid be given to all sides in the conflict, without regard to actual needs"
B. Evidentiary comment:
Since the Preparatory Commission emphasised the importance, for this offence, of criminalising omissions, some commentors have proposed another variant of the offence consisting in the failure, of an Occupying Power, to fulfil a duty under international humanitarian law. More precisely, this consists in "a failure of an Occupuying Power to ensure food and medical supplies (See article 55 of the Fourth Geneva Convention), provided, of course, that the starvation is used as a method of warfare. In addition, a State may fail to fulfil its duty to permit the free passage of consignments of foodstuffs, medical supplies and clothing (See article 59 of the Fourth Geneva Convention and articles 70 and 71 of First Add. Prot. A lack of answering a request within a reasonable amount of time may also constitute such a failure.[ ]". (Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) article 8, para. 223).
P.15. Evidence of abuse in the practice of distributing relief.
P.15.1. Evidence of conscripting by force into the army persons who came to get relief.
P.15.2. Evidence of detaining persons who came to get relief.
A. Legal source/authority and evidence:
D. Marcus, "Famine Crimes in International Law", 97 A.J.I.L. 245, p. 258:
"Relief that did go through went to specific areas controlled by the Ethiopian army. 108 Luring people to these government-controlled distribution centers, soldiers would forcibly conscript young men into the army and detain people for resettlement elsewhere in Ethiopia. 109 The soldiers would commonly send a few people back to their native village with a little grain so as to entice the other villagers to come to the center, and would then detain and relocate them. 110 These measures amounted to a de facto denial of aid, as candidates for such abuse chose to starve rather than risk impressment or resettlement for a handout grain. Interviews of survivors reported that "not one of the people interviewed felt that they could safely go to the government feeding centers and receive food." 111
"108 De Waal, supra note 43, at 52.
109 Id. In all, six hundred thousand people were resettled.
110 CLAY and HOLCOMB, supra note 85, at 50.
111Id. at 49."
[B. Evidentiary comment:]
