June 22, 2021
Throughout history and to this day, perpetrators have used deliberate starvation of civilians as a weapon of war. Recent reports from Ethiopia, South Sudan, Syria, Yemen, and elsewhere are prime examples of this tactic. Perpetrators often blame environmental, humanitarian, and conflict-related factors over which they claim to have no control. These claims can be challenging to refute as conflict often impacts supply chains, information about warring parties’ conduct on the ground can be hard to come by, and perpetrators rarely publicize their intentions. This makes deliberate starvation of civilians a hard crime to prosecute and an “attractive” crime to perpetrate: not only is it cheap, but perpetrators believe that there will be no consequences for their actions. This emboldens perpetrators to inflict unimaginable suffering on large numbers of people by starving them in plain sight.
For persecuted ethnic, religious, and other groups who inhabit specific regions—as they often do—deliberate starvation poses a particularly pronounced threat. Perpetrators may use starvation to persecute and even commit genocide against them while then conveniently deflecting blame for the human-made crisis on scare resources and food shortages in the specific region that they inhabit. As a result, perpetrators can starve, displace, and even decimate entire persecuted communities that live in specific areas while simultaneously using these same resources to benefit communities in other locations that support them.
In 2020, the UN concluded that there are reasonable grounds to believe that in 2017 and 2018, the South Sudanese government may have used starvation to persecute the Fertit and Luo of Western Bahr-el-Ghazal. Here we explore details of that report that could be used in this and similar circumstances to investigate these events as crimes and not just as inevitable outcomes of circumstances beyond anyone’s control. It does not delve into the context in which deliberate starvation may occur, nor does it explore the criminal conduct that may amount to deliberate starvation as persecution. It focuses on the “mental element”—or what the perpetrator intended or was thinking—because, as explained above, this can be a particularly difficult component of the crime to prove.
Why is this important?
For victims and survivors to receive meaningful justice, redress, and repair, the international community must recognize all of the legal implications of the crimes committed to reflect the precise nature of the harm and create an accurate historical narrative. Recognition is also an important part of prevention: perpetrators need to know that they cannot starve out communities on the basis of their identity by blaming conflict, food insecurity, and other environmental factors in the specific region that the victims inhabit.
What is the crime against humanity of persecution under the Rome Statute?
For persecution to rise to the level of a crime against humanity, Article 7 of the Rome Statute—which identifies the crimes that the International Criminal Court (ICC) can prosecute—requires the perpetrator to know about and commit the persecutory acts as part of a “widespread or systematic attack directed against a civilian population.” It must also occur “in connection with” any other crime that the ICC can prosecute. If these so-called “contextual elements” are met, the crime of persecution refers to the "intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity."
The perpetrator must also intend to deprive these fundamental rights and to do so on the basis of their identity. It is usually necessary to infer the perpetrator’s intentions from “relevant facts and circumstances.” The next two sections highlight relevant facts and circumstances that the report surfaces, which suggest that the government may have intended to starve the Fertit and Luo and that they did so on the basis of their identity.
What factors might suggest that starvation was intentional?
The Commission’s report identifies a number of facts which suggest that the starvation of communities in Western-Bahr-el-Ghazal between 2017 and 2018 could have been the result of intentional action by the South Sudanese government. First, the government took active steps to starve civilians. For example, in Mboro town, government soldiers dismantled and destroyed multiple boreholes, depriving civilians of access to drinking water on which they relied. Second, the government profited from this starvation. The report states that commanders allowed soldiers to “reward themselves” by pillaging livestock and harvests, which civilians relied on these resources for survival. In one case, government forces drove ancestral farmers and cultivators out of agriculturally-rich areas and took the resources (including food) to communities loyal to the government.
The broader circumstances in which these acts occurred, as outlined in the report, suggest that the government used deliberate starvation as a tactic in their effort to seize control over the region. Government soldiers attacked, took over, and advanced through towns one-by-one. The report details how other brutal crimes—such as gang rape, murder, and forced displacement—were critical to their strategy of terrorizing and driving out civilians.
Did the perpetrators starve civilians “by reason of [their] identity”?
To prove that a perpetrator committed the crime of persecution, it is not only necessary to establish that the act was intentional; the perpetrator must have deliberately targeted a specific group, because of their identity. This additional element is what makes the crime of persecution unique from other crimes against humanity.
According to the Commission, the government pursued a “broader, systematic strategy to prioritise the economic, social, and cultural rights of populations politically aligned with the Government'' (para. 72). The government reportedly manipulated humanitarian aid to benefit “sympathetic populations” by pressuring humanitarian actors to supply food to these populations over others. As described above, the government also rewarded government-aligned communities with foodstuffs and other critical resources stolen from civilians living in areas under opposition control.
Government forces also reportedly “used spies to report on their neighbours” (para. 65). They used this information to identify houses to steal livestock, and other resources. The report does not specify how government forces evaluated this information, and specifically whether they used it to target individuals by reason of their ethnic or perceived-political identity: this is a question that merits further consideration.
Numerous conflicts are unfolding around the world in which perpetrators may be deliberately starving civilians not only as a war crime, but also as a tool to persecute minority groups. This can be challenging because it can be—or appear to be—difficult to prove the perpetrator’s intentions. To prevent perpetrators from eliminating entire communities on the basis of their identity through deliberate starvation, policy-makers need to be able to recognize the warning signs that this dynamic may be occurring. A helpful starting point could be to consider the other ways that perpetrators in other contexts are seeking to disguise their intention to starve and wipe out specific communities.
Sarah McIntosh is the Associate with the Simon-Skjodt Center’s Ferencz International Justice Initiative. She is a practitioner who has worked with local actors to pursue justice for atrocity crimes in South Sudan. The Museum recently published a handbook for victim groups which she authored as part of her work. Read “Pursuing Justice for Mass Atrocities: A Handbook for Victim Groups.”
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