4. The perpetrator intended to starve civilians as a method of warfare.

P.16. Evidence inferred from an utterance, a document or a deed.

P.16.1. Evidence of the destruction of cropland/agricultural areas.

P.16.2. Evidence of the destruction of crops by defoliants

P.16.3. Evidence of the burning of fields and harvests.

P.16.4. Evidence of bombarding markets.

P.16.5. Evidence of the deployment of landmines in agricultural areas.

P.16.6. Evidence of the deployment of landmines in irrigation works.

P.16.7. Evidence of the disruption of public utilities (electricity/water supplies/fuel/ communications).

P.16.8. Evidence of the destruction of water-treatment stations.

P.16.9. Evidence of poisoning/polluting drinking water supplies.

P.16.10. Evidence of the forced requisition of food supplies.

P.16.11. Evidence of a siege or a blockade.

P.16.12. Evidence of preventing the aid agencies from entering the country.

P.16.13. Evidence of refusing access of humanitarian convoys to a certain region.

P.16.14. Evidence of putting roadblocks on the way of relief convoys.

P.16.15. Evidence of attacking or intimidating a relief convoy.

P.16.16. Evidence of air strikes against aid convoys.

P.16.17. Evidence of confiscating relief.

P.16.18. Evidence of closing/shelling an airport.

P.16.19. Evidence of putting a tax on the delivery of relief.

P.16.20. Evidence of conscripting by force into the army persons who came to get relief.

P.16.21. Evidence of detaining persons who came to get relief.

P.17. Evidence inferred from a circumstance.

P.17.1. Evidence of a scorched earth tactic.

P.17.2. Evidence of indiscriminate attacks.

P.17.3. Evidence of a lack of adequate reaction to remedy to the food shortage.

4. The perpetrator intended to starve civilians as a method of warfare.

A. Evidentiary comment:

This is a specific mental element added to the one already provided in Article 30 of the ICC Statute. According to Michael Cottier, this requires that "it must have been the perpetrator’s purpose to use starvation as a weapon against the population. Thus cases in which destruction of foodstuffs is merely a secondary consequence of an otherwise legal military action are not criminalized, as the perpetrator in such cases does not act for the required purpose. (See D. Frank, in R.S. Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), p.203 at p.205)". (Werle, Principles of International Criminal Law, para. 1086).

Furthermore, this element confirms the intention of criminalising the use of starvation as a method of warfare, "that is, to deliberately provoke, increase or prolong the starvation by deprivation of objects indispensable for the survival with an aim to gain a military advantage, including for instance forcing civilians to transfer to another area or State (for instance, burning down crops puts the civilian population before the uneasy choice to either starve or move away, which may present a military gain in that the political and physical control over this territory or area is or will be easier to establish"). (Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) article 8, para. 224).

P.16. Evidence inferred from an utterance, a document or a deed.

P.16.1. 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 population’s nutrition would be endangered by these actions ⁶⁸². 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, 2^nd 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."

[B. Evidentiary comment:]

P.16.2. 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.16.3. 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.16.4. Evidence of bombarding 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."

[B. Evidentiary comment:]

P.16.5. 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]."

[B. Evidentiary comment:]

P.16.6. 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]."

[B. Evidentiary comment:]

P.16.7. Evidence of the disruption of public utilities (electricity/water supplies/fuel/ communications).

A. Legal source/authority and evidence:

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."

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."

[B. Evidentiary comment:]

P.16.8. 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.16.9. 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 Protocol’s 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. INT’L 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.16.10. 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 individual’s 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."

[B. Evidentiary comment:]

P.16.11. 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."

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."

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."

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. […]"

[B. Evidentiary comment:]

P.16.12. 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 people’s abilities to cope with shortages through a myriad of rights violations underscores the former."

[B. Evidentiary comment:]

P.16.13. Evidence of refusing access of humanitarian convoys to a certain region.

A. Legal source/authority and evidence:

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.16.14. Evidence of putting roadblocks on 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.16.15. 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.16.16. 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.16.17. Evidence of confiscating 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:

"[…]Both governmental and non-governmental forces may confiscate relief or refuse permission to access a certain region. […]"

[B. Evidentiary comment:]

P.16.18. 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, […]."

[B. Evidentiary comment:]

P.16.19. 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:]

P.16.20. Evidence of conscripting by force into the army persons who came to get relief.

P.16.21. 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:]

P.17. Evidence inferred from a circumstance.

P.17.1. Evidence of a scorched earth tactic.

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 population’s nutrition would be endangered by these actions ⁶⁸². 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, 2^nd 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."

[B. Evidentiary comment:]

P.17.2. Evidence of indiscriminate attacks.

P.17.3. Evidence of a lack of adequate reaction to remedy to the food shortage.