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The war crime of starvation of civilians as a method of warfare is receiving unprecedented attention. Drawing on the moral philosophy of torture, Tom Dannenbaum offers a different normative theory of the crime.

Image courtesy of interviewee. April 25, 2024

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This video discusses the increasing problem of starvation during armed conflicts, emphasizing that a substantial number of people have faced acute food insecurity due to war, influenced by deliberate actions of warring parties rather than merely as a consequence of fighting. The author highlights the inadequacies of traditional international law in addressing these issues, although legal tools now exist to seek accountability for starvation as a war tactic.

The author outlines key components of international humanitarian law (IHL) relevant to food insecurity, particularly during belligerent occupation, including obligations of the occupying power to provide essential supplies and to ensure humanitarian access. Notable legal frameworks include prohibitions against using starvation of civilians as a method of warfare, protections for objects essential for civilian survival, and the obligation not to withhold humanitarian aid arbitrarily.

This video further explores the definition of war crimes, specifically the starvation of civilians, which has been recognized since 1998. It discusses the complexities surrounding the interpretations of "intent" in legal frameworks, distinguishing between direct intent (purposefully causing starvation) and oblique intent (foreseeing starvation as a likely consequence of actions).

In addition, it emphasizes the moral implications of using starvation as a means of warfare, arguing that this tactic seeks to break the will of civilians by subjecting them to prolonged suffering and deprivation. The author calls for a deeper understanding of the interplay between legal, moral, and empirical aspects of starvation in conflict, urging scholars and legal practitioners to work together to address and prevent this humanitarian crisis more effectively.

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Here are five key points from the video:

1. **Resurgence of Starvation in War**: Starvation as a weapon in conflict has significantly increased in the last decade, with millions suffering from acute food insecurity directly due to conflicts, such as those in Yemen, Syria, and Ukraine.

2. **Accountability and Legal Frameworks**: There is a legal obligation under international humanitarian law (IHL) for belligerent powers to ensure civilians have access to essential supplies. Calls for accountability are arising due to the deliberate actions taken by warring parties that exacerbate famine conditions, despite international legal tools existing for such accountability.

3. **Key Components of International Humanitarian Law**: IHL encompasses critical provisions addressing food insecurity, including the obligations of occupying states to provide for civilian needs, prohibition against starvation of civilians, and heightened protections for objects indispensable to civilian survival, such as food and water supplies.

4. **Interpretation of War Crimes**: Starvation of civilians as a method of warfare is codified as a war crime under international law, but interpretation regarding intent and the circumstances under which it applies remains debated. Proponents argue that the crime can be attached even beyond direct intent, if deprivation is likely to lead to starvation.

5. **Moral and Legal Action Required**: There is a pressing need for legal authorities, scholars, and international bodies to act against the practice of using starvation as a weapon of war. This includes raising awareness of the moral implications of starvation, ensuring effective legal frameworks are in place, and integrating empirical analysis with legal and normative arguments to drive policy change.

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Here are some key quotes from the video concerning the issue of starvation in armed conflict and international humanitarian law:

1. **Resurgence of Food Insecurity**:
- "Starvation in the convideo of war is a longstanding phenomenon, but it has seen a significant resurgence in the last decade or so."

2. **Scope of Food Insecurity**:
- "In each of the last five years, close to and in some years, well over a hundred million people have suffered crisis or worse levels of acute food insecurity as a result of conflict."

3. **Humanitarian Response and Accountability**:
- "These people are suffering these levels of food insecurity, not simply because of that collateral consequence of fighting, but because of the choices that belligerents have made about how to conduct their war."

4. **International Humanitarian Law**:
- "International humanitarian law...regulates how we conduct ourselves in convideo of armed conflict."

5. **Obligations of Occupying Powers**:
- "The occupying power has a clear affirmative obligation to ensure the adequate food, water, medical, and other essential supply to the civilian population."

6. **Prohibition of Starvation**:
- "The prohibition of starvation of civilians as a method of warfare...has been recognized as such since at least 1998 when it was first codified in the international criminal court statute."

7. **Judgment in Warfare**:
- "These rules...require a lot of judgment, feasibility and excessiveness."

8. **Intent and Militarily Effective Operations**:
- "The interpretation of the law has to be such as to allow that kind of operation to take place."

9. **Military Necessity vs. Humanity**:
- "Military necessity is never available as an underpinning principle of international humanitarian law in isolation...the product of the tension between those two principles is often a bright line prohibition."

10. **Moral Implications of Starvation**:
- "The moral toxicity of this practice...requires focusing on this torturous process from start to finish rather than simply on the end stage at which the momentum of famine has already taken hold."

These quotes encapsulate the complexities of humanitarian law as it pertains to starvation during armed conflict, emphasizing the legal, moral, and humanitarian dimensions of the issue.

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Starvation in the context of war is a longstanding

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phenomenon, but it has seen a significant resurgence in the

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last decade or so.

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And in each of the last five years, in fact, close to

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and in some years, well over a hundred million people

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have suffered crisis or worse levels

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of acute food insecurity as a result of conflict.

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And for many of those millions of people, this isn't simply

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the inevitable collateral consequence of fighting,

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whether it's in Yemen or Syria, Tigray

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or South Sudan, Sudan or Gaza, Ukraine

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or Nagorno, KAK, ak.

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These people are suffering these levels of food insecurity,

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not simply because of that collateral consequence

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of fighting, but because of the choices

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that belligerent have made about how to conduct their war.

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And that has inevitably provoked calls for accountability.

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These numbers far outstrip the number

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of civilian casualties from kinetic

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attacks in armed conflict.

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And traditionally international law was not particularly

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well positioned to respond

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to those calls for accountability.

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But we do know do now have the legal tools

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to heed those calls.

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The question is how to do it,

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what the law actually says on these issues

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and what's really at stake in those legal prohibitions.

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And that is at this stage still somewhat uncertain

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because we don't have case law at the international level.

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And so there's still a lot left to be worked out.

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And this study was in part in response to that situation.

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Well, international humanitarian law, which is also known

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as the law of armed conflict, is the body of law

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that regulates how we conduct ourselves in context

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of armed conflict.

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And it's applicable to states and to non-state armed groups.

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So it's not simply limited to the subset of war crimes.

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And within international humanitarian law as a whole,

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there are a number of provisions that are relevant to

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food insecurity, but there are really four core components

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that I think are worth emphasizing.

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The first is in context of belligerent occupation.

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And this is the longest standing of the rules relating

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to food insecurity and salvation in armed conflict.

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Belligerent occupation occurs when one state controls the

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territory of another state without

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that sovereign state's consent

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and in a way that displaces the sovereigns capacity

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to exercise its own authority.

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And when that happens,

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the occupying power has a clear affirmative obligation

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to ensure the adequate food, water, medical,

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and other essential supply to the civilian population.

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And when it can't do that, it has a clear obligation

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to allow unimpeded humanitarian access to that population.

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But that's specific to occupation.

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Beyond the context of occupation, the rules

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that we're looking at have come into effect more recently in

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the 1970s, particularly 1977, through the agreement of the

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Protocols additional to the Geneva Conventions.

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And in that framework there are three

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additional components here.

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One is the prohibition of salvation

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of civilians as a method of warfare.

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And we'll get into exactly what

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that means I think a little bit later

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'cause it's at the crux of the war crime.

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The second is the rule on the protection of objects

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and dispensable civilian survival.

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So these just are things like food, water, the systems

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by which they're maintained and produced like agricultural

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land, irrigation works and so on.

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And the key thing about those is that they're subject

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to a heightened protection as compared to objects generally.

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So an international humanitarian law,

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when we look at objects that have both civilian

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and military use, so-called dual use objects,

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those are ordinary classified

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as military objectives at a level of the rule

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of distinction, which is to say you can target

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those objects.

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The protection of the civilian value associated

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with those objects instead is applied through the principles

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of precautions and proportionality.

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In other words, the rule to do everything feasible

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to minimize civilian harm

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and not to attack at all if the civilian harm will be

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excessive in relation to the military advantage anticipated.

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But those are both rules that require a lot of judgment,

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feasibility and excessiveness.

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And so it's actually critical that objects indispensable

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to civilian survival is subject to a heightened set

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of brighter line protections.

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Unlike ordinary objects in particular, there are two

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that are worth emphasizing.

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One is that it's prohibited to attack, destroy removal,

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render useless, those kinds of objects for the purposes

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of denying their sustenance value,

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including denying their sustenance value to combatants

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unless combatants are the only people

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that draw sustenance from the object in question.

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To put it another way, unlike dual use objects which are

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generally targetable, dual use sustenance is specifically

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protected because civilians draw sustenance from it.

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Secondly, even if the purpose of attacking, destroying,

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or removing or rendering useless those objects is something

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other than denying their sustenance value,

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it's still prohibited to engage in that kind of action if

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civilians would be left so inadequately supplied as

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to cause their starvation or force their movement.

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So those two bright line prohibitions are critical

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to the protection of objects indispensable civilian survival

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that differentiates them from other objects.

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And the final component

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of international humanitarian law worth emphasizing here is

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the framework for humanitarian access, which is

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that belligerent parties cannot arbitrarily withhold consent

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to humanitarian access in a context in which populations are

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in need with respect to the delivery of essentials.

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And so that's an additional and crucial component here.

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And really all of these rules are ultimately interrelated,

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and I think we'll probably get into

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that in a little bit more detail in a moment.

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War crimes are a subset of international humanitarian law.

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They are the grave breaches

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or serious violations of international humanitarian law.

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And the key thing about a war crime is distinct from an

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international humanitarian law violation more generally is

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that when we have a war crime individuals can be prosecuted.

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They can be prosecuted in an international court such

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as the international criminal court,

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or they can be prosecuted at a foreign domestic court

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in context in which that court would

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otherwise not ordinarily have jurisdiction.

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It has jurisdiction simply in virtue of the fact

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that the act in question is a war crime.

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And within the category of war crimes, starvation

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of civilians as a method of warfare is, as you said, one

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of those war crimes and has been recognized

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as such since at least 1998 when it was first codified in

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the international criminal court statute.

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The difficulty is we haven't had any cases at the

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international level involving the prosecution

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of this particular war crime.

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And so as is often the case in the absence of case law,

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we have some debate regarding exactly how to interpret it.

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And the way that it's framed is intentionally using

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starvation of civilians as a method of warfare

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by depriving them of objects indispensable

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to their civilian survival, including

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through willfully impeding humanitarian relief.

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The way in which the debates tend to go is to focus on

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what exactly intention means here,

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and particularly how does it relate to this concept

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of starvation as a method of warfare.

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And those on the narrowest end of the prohibition

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or who argue for the narrowest version of the prohibition

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emphasize those concepts, intent and method to try

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and identify a very narrow understanding the prohibition

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that's focused on purpose

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and that identifies the crime as attaching only

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where the purpose of the operation is specifically

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to weaponize civilians being in a state of starvation,

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my view is that that's incorrect

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and that the crime can in fact attach

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in two other kinds of contexts.

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First, where there's the deliberate deprivation of food,

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water, or other essentials to a population that is

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at least predominantly civilian

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and maybe any mixed population where

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that deprivation is done for the purpose

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of sustenance denial, regardless of

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what the precise end state that's expected is.

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And regardless of what the ultimate purpose of

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that sustenance denial is, alternatively,

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it can attach wherever there's deprivation in a context in

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which it is virtually certain

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that civilians will start as a result.

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But the interpretive debate really hinges on how

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to understand concepts of intent

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and method of warfare in this context.

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So doctrinally, the key grounds for

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that narrow interpretation are focusing on the concept

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of intent and saying intent is really about purpose.

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So for a party to the conflict

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to intentionally use starvation as civilians as a method

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of warfare, it has to be purposefully fully trying

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to achieve that particular outcome.

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And method is interpreted narrowly to bolster that.

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And then starvation is interpreted

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to really focus exclusively on this end state

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of malnutrition that is at a level that is incompatible

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with sustaining life.

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Nly, the argument focuses on this concept

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of military necessity.

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Those who operate in the area

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of international humanitarian law be very familiar

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with the concept of military necessity

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as an underpinning principle.

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In international humanitarian laws,

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I think better translated as military efficacy.

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But the basic idea here is that when one has a defended area

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that is a populated area, particularly an urban environment,

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it's very difficult to break down that objective, to take

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that area in a context in which it's highly

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populated and defended.

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One way to achieve that objective is to cut off the supply

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of essentials to the adversary

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and seek to squeeze them into capitulation.

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But because it's impossible to determine who within

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that populated area will draw on particular deliveries

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of food or water or other essentials, the only way

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00:09:55.165 --> 00:09:57.925
to do it on this view is to cut off the area as a whole.

215
00:09:58.465 --> 00:10:01.645
And because that is a militarily effective way

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of achieving the objective

217
00:10:03.205 --> 00:10:05.925
of taking this particular location, those

218
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who advocate this version of the prohibition argue that

219
00:10:10.275 --> 00:10:14.245
therefore the interpretation of the law has to be such as

220
00:10:14.265 --> 00:10:16.485
to allow that kind of operation to take place.

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And that militates in favor

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of seeing the prohibition is attaching only when the

223
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ultimate purpose is putting civilians in a situation

224
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of starvation, which on this view would not be the case if

225
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the purpose is simply to squeeze the combatants within

226
00:10:31.565 --> 00:10:33.805
that civilian population and

227
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therefore that kind of operation could be permitted.

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Again. I think that's fundamentally incorrect

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as a way of interpreting the law.

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But that's part of the way that the normative argument

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around military necessity relates

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to the doctrinal focus on a narrow understanding

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of intent and method of warfare.

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00:10:50.985 --> 00:10:53.005
The first difficulty, I think, starting

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with the normative component of this debate is

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that military necessity is never available

237
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as an underpinning principle

238
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of international humanitarian law in isolation.

239
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Rather, it constantly operates in tension

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with a countervailing principle,

241
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which is the principle of humanity.

242
00:11:10.185 --> 00:11:13.765
And the product of the tension between those two principles

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is often a bright line prohibition from which there is

244
00:11:18.125 --> 00:11:21.885
subsequently no military necessity, caveat, no basis

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00:11:22.105 --> 00:11:24.765
for reinterpreting the prohibition in a narrower way

246
00:11:25.065 --> 00:11:28.685
to allow for a particular military imperative.

247
00:11:29.345 --> 00:11:30.725
And there are many examples of this,

248
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but the example that I think is most relevant

249
00:11:33.285 --> 00:11:36.645
to this particular context is the prohibition on attacks on

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00:11:36.645 --> 00:11:39.125
a civilian population and on indiscriminate attacks.

251
00:11:39.505 --> 00:11:42.245
So if you take exactly the same population

252
00:11:42.275 --> 00:11:45.445
that might be subject to a starvation siege,

253
00:11:46.315 --> 00:11:50.805
everybody agrees that it is clearly prohibited a war crime

254
00:11:50.865 --> 00:11:52.445
and indeed a crime against humanity

255
00:11:53.145 --> 00:11:57.445
to indiscriminately carpet bomb, that population as a whole

256
00:11:57.905 --> 00:11:59.885
and one can't simply refer to.

257
00:12:00.275 --> 00:12:01.965
Well, what we're trying to do is

258
00:12:02.025 --> 00:12:04.525
to neutralize the combatants within that population,

259
00:12:04.545 --> 00:12:06.365
and it's difficult to figure out who's a combatant

260
00:12:06.365 --> 00:12:07.805
and a civilian, so we're just gonna attack everybody.

261
00:12:08.315 --> 00:12:10.445
That would be not permissible.

262
00:12:10.465 --> 00:12:12.325
And it would indeed, as I said, be a war crime

263
00:12:12.325 --> 00:12:13.325
and a crime against humanity

264
00:12:13.325 --> 00:12:16.525
because international humanitarian law has a clear principle

265
00:12:16.525 --> 00:12:18.765
here, which which is that a civilian population

266
00:12:19.315 --> 00:12:22.405
does not at the aggregate level lose its civilian character

267
00:12:22.405 --> 00:12:25.165
in virtue the presence of combatants within that population.

268
00:12:25.545 --> 00:12:28.405
So at least where the population is predominantly civilian,

269
00:12:28.745 --> 00:12:30.845
the population is as a whole, is civilian,

270
00:12:30.905 --> 00:12:32.925
and any operation directed at the population

271
00:12:32.925 --> 00:12:35.925
as a whole is an operation directed at a civilian population

272
00:12:36.225 --> 00:12:37.245
and therefore can qualify

273
00:12:37.305 --> 00:12:39.725
as a crime against humanity and a war crime.

274
00:12:40.025 --> 00:12:42.205
And so the question is, well, why would it be any different

275
00:12:42.305 --> 00:12:44.605
if what we're looking at is deprivation directed at

276
00:12:44.605 --> 00:12:47.245
that population as a whole as compared to a kinetic attack

277
00:12:47.925 --> 00:12:49.885
directed at the population as a whole?

278
00:12:50.185 --> 00:12:53.125
And it can't be that we are eScribing the purpose

279
00:12:53.595 --> 00:12:55.725
with reference to squeezing combatants

280
00:12:55.725 --> 00:12:57.325
because we can't redescribe the purpose

281
00:12:57.345 --> 00:13:00.165
of the kinetic attack as neutralizing combatants.

282
00:13:00.185 --> 00:13:01.245
And it can't be simply

283
00:13:01.245 --> 00:13:03.125
that the operation would be militarily effective

284
00:13:03.125 --> 00:13:04.685
because a kinetic attack of

285
00:13:04.685 --> 00:13:06.645
that kind could also be militarily effective.

286
00:13:06.985 --> 00:13:11.565
But it's so undermining of the human humanity principle

287
00:13:11.565 --> 00:13:12.765
that it's clearly prohibited.

288
00:13:13.345 --> 00:13:14.845
And so what then is the argument,

289
00:13:15.025 --> 00:13:17.965
and I think the argument that sometimes it's explicit

290
00:13:18.065 --> 00:13:20.725
and sometimes implicit really relies on the concept

291
00:13:20.865 --> 00:13:22.645
of time and ity.

292
00:13:22.945 --> 00:13:23.965
And the idea here is

293
00:13:23.965 --> 00:13:27.765
that kinetic attack has the immediate impact of injuring

294
00:13:27.765 --> 00:13:29.045
and killing civilians

295
00:13:29.045 --> 00:13:31.245
and combatants indiscriminately, whereas

296
00:13:32.185 --> 00:13:34.525
the deprivation operation, cutting

297
00:13:34.525 --> 00:13:38.085
that population off from the supply of food, water,

298
00:13:38.145 --> 00:13:40.605
and other essentials does not have that kind

299
00:13:40.605 --> 00:13:41.925
of immediate effect.

300
00:13:41.925 --> 00:13:44.045
Rather it has an effect that occurs over time.

301
00:13:44.625 --> 00:13:48.445
And the fact at that time offers the possibility of

302
00:13:49.115 --> 00:13:51.805
harm mitigation of the harm being mitigated

303
00:13:51.805 --> 00:13:52.925
through capitulation,

304
00:13:52.955 --> 00:13:55.405
through civilians rising up against the authority under

305
00:13:55.405 --> 00:13:57.525
which they're operating, through civilians fleeing the

306
00:13:57.525 --> 00:13:58.565
area and so on.

307
00:13:58.745 --> 00:14:01.325
And all of that allows for eScribing the purpose

308
00:14:01.665 --> 00:14:03.445
as eliciting that capitulation

309
00:14:04.025 --> 00:14:05.725
before the ultimate end state

310
00:14:05.865 --> 00:14:08.085
of civilians being in a state of starvation.

311
00:14:08.945 --> 00:14:12.485
And that to get to your question goes to this issue of

312
00:14:13.035 --> 00:14:16.125
torture because I think that bears a striking resemblance

313
00:14:16.125 --> 00:14:19.165
to arguments that are sometimes offered relating to torture

314
00:14:19.665 --> 00:14:22.685
and necessity arguments in that context,

315
00:14:22.685 --> 00:14:24.765
particularly ticking bomb type arguments

316
00:14:25.095 --> 00:14:27.245
where the claim is sometimes made that, well,

317
00:14:27.245 --> 00:14:30.565
the person who's being subject to this kind of

318
00:14:31.715 --> 00:14:34.375
impact has the possibility of mitigating its effect

319
00:14:34.375 --> 00:14:36.815
through capitulating, through providing the information

320
00:14:36.875 --> 00:14:39.175
or capitulating in whatever other ways demanded

321
00:14:39.675 --> 00:14:41.495
by the interrogator.

322
00:14:42.285 --> 00:14:45.135
That argument I think is not at all persuasive.

323
00:14:45.135 --> 00:14:47.655
And we have a bright line prohibition on torture,

324
00:14:47.755 --> 00:14:49.935
and there are various reasons for that, some of which go

325
00:14:49.935 --> 00:14:51.925
to questions about whether it's ever effective,

326
00:14:51.985 --> 00:14:53.405
the institutional effects of

327
00:14:54.005 --> 00:14:56.125
allowing torture in even extreme circumstances.

328
00:14:57.185 --> 00:14:59.085
And I think those arguments are persuasive,

329
00:14:59.105 --> 00:15:02.525
but I think the most persuasive is an argument that goes to

330
00:15:02.995 --> 00:15:05.765
what is fundamentally humanity destroying about torture.

331
00:15:06.585 --> 00:15:09.005
And that argument has been offered by philosophers such

332
00:15:09.125 --> 00:15:11.645
as David Sussman and Henry Shu.

333
00:15:12.065 --> 00:15:14.565
And really what's at the crux of that argument is

334
00:15:14.915 --> 00:15:16.645
that torture doesn't simply work

335
00:15:16.825 --> 00:15:21.565
by placing the individual in question's commitment in a

336
00:15:21.565 --> 00:15:24.485
particular context against a cost that is escalating,

337
00:15:24.795 --> 00:15:27.365
that they then have to at certain point make a decision

338
00:15:27.595 --> 00:15:31.125
whether that cost is sufficient

339
00:15:31.145 --> 00:15:33.885
to warrant relieving themselves of that commitment.

340
00:15:34.305 --> 00:15:37.645
Rather, the way that torture works is to inflict severe pain

341
00:15:37.645 --> 00:15:40.845
and suffering on the victim in a way that as Susman puts,

342
00:15:40.845 --> 00:15:42.405
it becomes their whole world

343
00:15:42.905 --> 00:15:45.125
to the point at which it's not even possible to think about

344
00:15:45.125 --> 00:15:47.245
that kind of calculation anymore.

345
00:15:47.515 --> 00:15:49.765
There's just this overriding imperative,

346
00:15:49.815 --> 00:15:52.565
biological imperative to be free from pain

347
00:15:52.565 --> 00:15:55.965
and suffering that precludes sustaining even those

348
00:15:56.595 --> 00:15:57.685
high order commitments

349
00:15:57.705 --> 00:15:59.965
for which one would in principle sacrifice everything.

350
00:16:00.745 --> 00:16:03.525
And so it is uniquely destructive of our humanity

351
00:16:03.525 --> 00:16:06.995
because that is one of the core components of our humanity,

352
00:16:07.055 --> 00:16:08.795
our capacity for higher order commitments

353
00:16:08.815 --> 00:16:10.595
for which we would be willing to sacrifice.

354
00:16:11.455 --> 00:16:13.115
But seeing torture in that way

355
00:16:13.115 --> 00:16:15.595
and seeing the bright line prohibition on torture in

356
00:16:15.595 --> 00:16:17.115
that way, I think is illuminating of

357
00:16:17.115 --> 00:16:19.195
how we might think about starvation methods.

358
00:16:19.385 --> 00:16:23.475
Because the way that a particular process

359
00:16:23.575 --> 00:16:27.355
of deprivation might lead to capitulation

360
00:16:27.535 --> 00:16:31.635
before the end state of a level of malnutrition incompatible

361
00:16:31.665 --> 00:16:35.835
with sustaining life is precisely through breaking the will

362
00:16:35.855 --> 00:16:38.195
of the civilian population that's affected that in that way

363
00:16:38.465 --> 00:16:42.355
through putting the biological imperative

364
00:16:42.495 --> 00:16:45.475
to be free from the suffering associated with extreme hunger

365
00:16:46.425 --> 00:16:48.515
against their high order political

366
00:16:48.515 --> 00:16:50.635
and social commitments to maintain solidarity,

367
00:16:50.735 --> 00:16:53.155
to maintain resistance, to maintain fidelity

368
00:16:53.255 --> 00:16:55.155
to the authority under which they're operating.

369
00:16:55.975 --> 00:16:59.075
And so essentially it involves torturing them into

370
00:16:59.075 --> 00:17:01.275
submission, not simply escalating costs,

371
00:17:01.695 --> 00:17:03.475
but inflicting suffering

372
00:17:03.475 --> 00:17:06.235
to the point at which it's not even possible to contemplate

373
00:17:07.035 --> 00:17:09.715
a trade off between costs and benefits.

374
00:17:09.815 --> 00:17:12.315
But instead even those high order commitments

375
00:17:12.315 --> 00:17:15.075
for which one would sacrifice everything are supplicate

376
00:17:15.095 --> 00:17:16.315
to this biological imperative

377
00:17:16.335 --> 00:17:17.675
to be free from pain and suffering.

378
00:17:18.015 --> 00:17:22.235
And even in context in which the besieging party takes the

379
00:17:22.235 --> 00:17:23.875
view, we're not actually trying to operate

380
00:17:23.875 --> 00:17:25.595
through the civilian population in that way.

381
00:17:25.595 --> 00:17:27.235
We don't even think they have the capacity

382
00:17:27.335 --> 00:17:30.555
to determine the decision around capitulation

383
00:17:30.555 --> 00:17:32.515
because ultimately their supplicant to authority

384
00:17:32.515 --> 00:17:33.995
that's not responsive to their will.

385
00:17:34.705 --> 00:17:36.795
Even then, the only way in which

386
00:17:37.725 --> 00:17:40.995
combatants are gonna be squeezed in this context, given

387
00:17:40.995 --> 00:17:43.835
that we know that combatants are always gonna be the last

388
00:17:44.055 --> 00:17:45.955
to starve, they're the ones with the guns,

389
00:17:45.955 --> 00:17:48.595
they're not gonna be the first to starve, is

390
00:17:48.595 --> 00:17:49.965
through inflicting this level

391
00:17:49.965 --> 00:17:53.085
of suffering on the civilian population in a context in

392
00:17:53.085 --> 00:17:56.525
which scholars of famine have shown repeatedly that

393
00:17:56.715 --> 00:18:00.965
what happens is social bonds break, social norms start to

394
00:18:01.485 --> 00:18:03.125
collapse the web of social

395
00:18:03.265 --> 00:18:06.485
and moral concern contracts as the biological imperative

396
00:18:06.545 --> 00:18:07.885
to be free from pain

397
00:18:07.885 --> 00:18:10.805
and suffering, precludes sustaining those kinds

398
00:18:10.825 --> 00:18:12.485
of social norms

399
00:18:12.505 --> 00:18:16.315
and commitments to community, to social

400
00:18:16.415 --> 00:18:17.435
and political systems,

401
00:18:17.615 --> 00:18:19.475
and even to family in a way

402
00:18:19.475 --> 00:18:22.195
that ultimately involves the torture of those individuals

403
00:18:22.215 --> 00:18:25.995
and really the torture of the society as a whole, regardless

404
00:18:26.255 --> 00:18:28.915
of even this point about capitulation

405
00:18:29.295 --> 00:18:31.435
and breaking the will of the civilian population.

406
00:18:31.655 --> 00:18:33.395
And so seen in that way, the ity

407
00:18:33.395 --> 00:18:35.915
of this process is not actually a mitigating factor.

408
00:18:36.345 --> 00:18:38.155
It's instead constitutive of

409
00:18:38.155 --> 00:18:41.315
what is uniquely torturous about this particular phenomenon.

410
00:18:41.315 --> 00:18:44.995
And so in that sense, I think the normative framing of those

411
00:18:45.015 --> 00:18:47.635
who advocate the narrow prohibition

412
00:18:48.415 --> 00:18:52.025
totally misses this component of this particular practice.

413
00:18:52.335 --> 00:18:53.545
Much of what we've been discussing

414
00:18:53.545 --> 00:18:54.625
so far is really at the level

415
00:18:54.625 --> 00:18:56.545
of the underlying normative debate,

416
00:18:56.645 --> 00:18:58.505
but then there's the question of how do we understand

417
00:18:58.505 --> 00:19:00.025
what the law actually says on this?

418
00:19:00.685 --> 00:19:02.225
And I mentioned a couple of concepts

419
00:19:02.225 --> 00:19:03.665
that are relevant here earlier.

420
00:19:04.125 --> 00:19:07.065
One is that a civilian population doesn't lose its civilian

421
00:19:07.065 --> 00:19:10.025
character simply in virtually the presence of combatants.

422
00:19:10.255 --> 00:19:12.065
Another is that objects indispensable

423
00:19:12.065 --> 00:19:14.985
to civilian survival are subject to a heightened level

424
00:19:15.005 --> 00:19:16.985
of protection and prohibition

425
00:19:16.985 --> 00:19:18.945
around attacks on those objects.

426
00:19:19.865 --> 00:19:23.745
A third component here that's worth introducing is how

427
00:19:23.745 --> 00:19:25.265
to understand the concept of intent.

428
00:19:25.805 --> 00:19:27.985
And in the international criminal court framework,

429
00:19:28.475 --> 00:19:31.465
which is in many ways the narrowest framework when it comes

430
00:19:31.465 --> 00:19:33.865
to understanding the meaning of intent, there are two forms

431
00:19:33.925 --> 00:19:36.505
of intent, direct intent and oblique intent.

432
00:19:37.205 --> 00:19:40.985
Direct intent refers precisely to this notion of purpose,

433
00:19:41.045 --> 00:19:44.305
of intent of acting with a particular purpose.

434
00:19:44.885 --> 00:19:47.885
But oblique intent is the concept

435
00:19:47.995 --> 00:19:51.205
that one can have intent vis-a-vis a particular consequence,

436
00:19:51.915 --> 00:19:54.245
even when that consequence is not one's purpose,

437
00:19:54.425 --> 00:19:56.765
but where it is the virtually certain result

438
00:19:56.905 --> 00:19:58.005
of one's action.

439
00:19:58.265 --> 00:20:00.165
And either of those can qualify

440
00:20:00.305 --> 00:20:03.365
as intent under the international criminal framework.

441
00:20:04.285 --> 00:20:05.925
A second component here is to understand

442
00:20:05.925 --> 00:20:07.005
what starvation means,

443
00:20:07.005 --> 00:20:08.045
and particularly what starvation

444
00:20:08.045 --> 00:20:09.925
of civilians is a method of warfare means.

445
00:20:10.305 --> 00:20:12.445
And there are two components to thinking about this.

446
00:20:13.145 --> 00:20:15.725
One is that starvation has both transitive

447
00:20:15.745 --> 00:20:17.245
and int transitive meanings.

448
00:20:17.985 --> 00:20:20.125
Intransitively. When we use the term salvation,

449
00:20:20.125 --> 00:20:22.445
we're talking about that level of malnutrition at which

450
00:20:23.135 --> 00:20:25.005
we're no longer in a state that's compatible

451
00:20:25.005 --> 00:20:26.005
with sustaining life.

452
00:20:26.585 --> 00:20:30.445
But transitively starvation is a practice, it's the practice

453
00:20:30.445 --> 00:20:31.645
of sustenance denial.

454
00:20:31.825 --> 00:20:33.525
And one engages in that practice

455
00:20:33.625 --> 00:20:37.125
before the point at which the individual who's being starved

456
00:20:37.125 --> 00:20:38.565
is in a state of starvation.

457
00:20:39.025 --> 00:20:40.845
As soon as one is engaging in a practice

458
00:20:40.845 --> 00:20:42.485
of sustenance denial with respect

459
00:20:42.485 --> 00:20:44.125
to an individual or a collective.

460
00:20:44.425 --> 00:20:46.885
One is engaging in the practice of starvation,

461
00:20:46.985 --> 00:20:49.045
the transitive practice of starvation

462
00:20:50.675 --> 00:20:54.805
that then should be incorporated alongside the relationship

463
00:20:54.805 --> 00:20:56.045
between the rules on objects

464
00:20:56.045 --> 00:20:57.365
indispensable civilian survival.

465
00:20:57.665 --> 00:21:00.005
And the prohibition of starvation of civilians is a method

466
00:21:00.005 --> 00:21:02.725
of warfare because the way that it's codified,

467
00:21:02.725 --> 00:21:05.645
these things are in fact highly intertwined

468
00:21:05.785 --> 00:21:07.805
and in my view, mutually constitutive

469
00:21:08.155 --> 00:21:10.925
with the rules on the objects, the protection

470
00:21:10.925 --> 00:21:12.525
of objects indispensable civilian survival,

471
00:21:12.525 --> 00:21:15.645
really being a lab, an elaboration of the prohibition

472
00:21:15.645 --> 00:21:17.485
of salvation, of civilians as a method of warfare

473
00:21:18.105 --> 00:21:20.005
and taking all of these things together.

474
00:21:21.345 --> 00:21:25.805
The direction I think it leads is understanding the crime

475
00:21:25.905 --> 00:21:28.685
of intentionally using salvation of civilians as a method

476
00:21:28.685 --> 00:21:31.085
of warfare, as attaching

477
00:21:31.645 --> 00:21:35.525
whenever a particular individual group is engaged in

478
00:21:35.525 --> 00:21:39.765
deliberately depriving a population of objects indispensable

479
00:21:39.765 --> 00:21:42.045
to its survival, whether that deprivation is through attack,

480
00:21:42.245 --> 00:21:43.885
through destruction, through removal,

481
00:21:43.885 --> 00:21:45.685
through impeding humanitarian relief,

482
00:21:45.715 --> 00:21:47.885
through impeding the access of that population

483
00:21:48.305 --> 00:21:51.605
to agricultural lands or any other mode of deprivation.

484
00:21:52.065 --> 00:21:55.645
And is doing that in one of two contexts, either

485
00:21:56.265 --> 00:22:01.125
direct intent with the purpose of denying sustenance

486
00:22:01.185 --> 00:22:04.805
to that population where that population is mixed,

487
00:22:04.865 --> 00:22:07.565
or at the very least, where it's predominantly civilian and

488
00:22:07.565 --> 00:22:10.085
therefore a civilian population in aggregate,

489
00:22:10.595 --> 00:22:13.885
even if the ultimate goal is to squeeze combatants

490
00:22:14.865 --> 00:22:17.205
or where that deliberate deprivation is occurring

491
00:22:17.205 --> 00:22:21.485
for any other reason where the known consequence is

492
00:22:22.005 --> 00:22:24.205
civilians being in an end state of starvation.

493
00:22:24.585 --> 00:22:28.645
And so this combines both the oblique intent distinction

494
00:22:28.645 --> 00:22:30.445
and the distinction between transitive

495
00:22:30.445 --> 00:22:32.245
and int transitive states of starvation.

496
00:22:32.545 --> 00:22:34.645
And what's critical about it, particularly given

497
00:22:34.645 --> 00:22:37.565
that starvation often occurs in a crowded causal context,

498
00:22:37.575 --> 00:22:39.805
which is to say deprivation occurs.

499
00:22:39.805 --> 00:22:42.005
But there are all sorts of other factors that lead

500
00:22:42.005 --> 00:22:44.405
to the end state of starvation, and it occurs over time.

501
00:22:45.345 --> 00:22:48.005
The crucial thing is that this prohibition attaches

502
00:22:48.545 --> 00:22:51.645
at the moment of deliberate deprivation where that's done

503
00:22:51.645 --> 00:22:55.045
for sustenance denial regardless of questions of causation

504
00:22:55.225 --> 00:22:57.005
and end state results,

505
00:22:57.945 --> 00:23:01.245
or once the situation has become sufficiently dire

506
00:23:01.265 --> 00:23:03.805
to any deprivation, regardless of the reasons for

507
00:23:03.805 --> 00:23:06.925
that deprivation, because the deprivation is virtually

508
00:23:06.925 --> 00:23:08.245
certain to cause starvation.

509
00:23:08.545 --> 00:23:10.965
So these two components are both crucial.

510
00:23:11.355 --> 00:23:13.605
They apply at different stages in this process

511
00:23:14.185 --> 00:23:17.885
and in combination, they're essential to a functional

512
00:23:17.905 --> 00:23:21.005
and effective criminal law prohibition in this context.

513
00:23:21.505 --> 00:23:23.245
So the first thing is to

514
00:23:24.155 --> 00:23:27.405
emphasize the moral toxicity of this practice.

515
00:23:27.585 --> 00:23:29.645
And I think that really requires

516
00:23:30.605 --> 00:23:33.605
focusing on this torturous process from start

517
00:23:33.725 --> 00:23:37.005
to finish rather than simply on the end stage at which the

518
00:23:37.205 --> 00:23:39.165
momentum of famine has already taken hold.

519
00:23:39.425 --> 00:23:41.445
So it's identifying the moral toxicity

520
00:23:41.445 --> 00:23:44.765
of this practice early so that we can act in response

521
00:23:44.765 --> 00:23:45.845
to that early.

522
00:23:46.665 --> 00:23:51.405
The second is to inform legal authorities, courts,

523
00:23:51.635 --> 00:23:54.725
prosecutors, and legal advisors within militaries

524
00:23:55.295 --> 00:23:57.525
about these legal frameworks

525
00:23:57.705 --> 00:24:00.045
and to ensure that they are applied effectively

526
00:24:00.045 --> 00:24:02.525
through the various processes.

527
00:24:03.265 --> 00:24:07.085
And the third is that I think as a community of scholars,

528
00:24:07.085 --> 00:24:09.125
what we need to do is bring some

529
00:24:09.125 --> 00:24:12.205
of these normative arguments, legal arguments together

530
00:24:12.235 --> 00:24:16.205
with empirical analysis of the trajectory of starvation

531
00:24:16.785 --> 00:24:20.645
and famine, and build an interdisciplinary understanding

532
00:24:20.665 --> 00:24:22.325
of this process as a whole

533
00:24:22.715 --> 00:24:26.445
that can be maximally compelling in changing policies

534
00:24:26.445 --> 00:24:28.765
and behaviors in relation to these issues.

Starvation and Accountability in Armed Conflict

00:00:00 - Starvation in the context of war is a longstanding phenomenon, but it has seen a significant resurgence in the last decade or so. And in each of the last five years, in fact, close to and in some years, well over a hundred million people have suffered crisis or worse levels of acute food insecurity as a result of conflict. And for many of those millions of people, this isn't simply the inevitable collateral consequence of fighting, whether it's in Yemen or Syria, Tigray
00:00:37 - or Nagorno, KAK, ak. These people are suffering these levels of food insecurity, not simply because of that collateral consequence of fighting, but because of the choices that belligerent have made about how to conduct their war. And that has inevitably provoked calls for accountability. These numbers far outstrip the number of civilian casualties from kinetic attacks in armed conflict.
00:01:06 - well positioned to respond to those calls for accountability. But we do know do now have the legal tools to heed those calls. The question is how to do it, what the law actually says on these issues and what's really at stake in those legal prohibitions. And that is at this stage still somewhat uncertain because we don't have case law at the international level. And so there's still a lot left to be worked out. And this study was in part in response to that situation.
00:01:39 - as the law of armed conflict, is the body of law that regulates how we conduct ourselves in context of armed conflict. And it's applicable to states and to non-state armed groups. So it's not simply limited to the subset of war crimes. And within international humanitarian law as a whole, there are a number of provisions that are relevant to food insecurity, but there are really four core components that I think are worth emphasizing. The first is in context of belligerent occupation.
00:02:13 - to food insecurity and salvation in armed conflict. Belligerent occupation occurs when one state controls the territory of another state without that sovereign state's consent and in a way that displaces the sovereigns capacity to exercise its own authority. And when that happens, the occupying power has a clear affirmative obligation to ensure the adequate food, water, medical, and other essential supply to the civilian population.
00:02:43 - to allow unimpeded humanitarian access to that population. But that's specific to occupation. Beyond the context of occupation, the rules that we're looking at have come into effect more recently in the 1970s, particularly 1977, through the agreement of the Protocols additional to the Geneva Conventions. And in that framework there are three additional components here. One is the prohibition of salvation of civilians as a method of warfare. And we'll get into exactly what that means I think a little bit later

Legal Protections for Civilian Survival Objects

00:03:13 - The second is the rule on the protection of objects and dispensable civilian survival. So these just are things like food, water, the systems by which they're maintained and produced like agricultural land, irrigation works and so on. And the key thing about those is that they're subject to a heightened protection as compared to objects generally. So an international humanitarian law, when we look at objects that have both civilian and military use, so-called dual use objects, those are ordinary classified
00:03:45 - of distinction, which is to say you can target those objects. The protection of the civilian value associated with those objects instead is applied through the principles of precautions and proportionality. In other words, the rule to do everything feasible to minimize civilian harm and not to attack at all if the civilian harm will be excessive in relation to the military advantage anticipated. But those are both rules that require a lot of judgment, feasibility and excessiveness. And so it's actually critical that objects indispensable
00:04:16 - of brighter line protections. Unlike ordinary objects in particular, there are two that are worth emphasizing. One is that it's prohibited to attack, destroy removal, render useless, those kinds of objects for the purposes of denying their sustenance value, including denying their sustenance value to combatants unless combatants are the only people that draw sustenance from the object in question. To put it another way, unlike dual use objects which are generally targetable, dual use sustenance is specifically
00:04:52 - Secondly, even if the purpose of attacking, destroying, or removing or rendering useless those objects is something other than denying their sustenance value, it's still prohibited to engage in that kind of action if civilians would be left so inadequately supplied as to cause their starvation or force their movement. So those two bright line prohibitions are critical to the protection of objects indispensable civilian survival that differentiates them from other objects.
00:05:19 - of international humanitarian law worth emphasizing here is the framework for humanitarian access, which is that belligerent parties cannot arbitrarily withhold consent to humanitarian access in a context in which populations are in need with respect to the delivery of essentials. And so that's an additional and crucial component here. And really all of these rules are ultimately interrelated, and I think we'll probably get into that in a little bit more detail in a moment. War crimes are a subset of international humanitarian law.
00:05:51 - or serious violations of international humanitarian law. And the key thing about a war crime is distinct from an international humanitarian law violation more generally is that when we have a war crime individuals can be prosecuted. They can be prosecuted in an international court such as the international criminal court, or they can be prosecuted at a foreign domestic court in context in which that court would otherwise not ordinarily have jurisdiction. It has jurisdiction simply in virtue of the fact that the act in question is a war crime.

Starvation as a War Crime: Legal Interpretations

00:06:23 - of civilians as a method of warfare is, as you said, one of those war crimes and has been recognized as such since at least 1998 when it was first codified in the international criminal court statute. The difficulty is we haven't had any cases at the international level involving the prosecution of this particular war crime. And so as is often the case in the absence of case law, we have some debate regarding exactly how to interpret it. And the way that it's framed is intentionally using
00:06:55 - by depriving them of objects indispensable to their civilian survival, including through willfully impeding humanitarian relief. The way in which the debates tend to go is to focus on what exactly intention means here, and particularly how does it relate to this concept of starvation as a method of warfare. And those on the narrowest end of the prohibition or who argue for the narrowest version of the prohibition emphasize those concepts, intent and method to try
00:07:26 - that's focused on purpose and that identifies the crime as attaching only where the purpose of the operation is specifically to weaponize civilians being in a state of starvation, my view is that that's incorrect and that the crime can in fact attach in two other kinds of contexts. First, where there's the deliberate deprivation of food, water, or other essentials to a population that is at least predominantly civilian
00:07:58 - that deprivation is done for the purpose of sustenance denial, regardless of what the precise end state that's expected is. And regardless of what the ultimate purpose of that sustenance denial is, alternatively, it can attach wherever there's deprivation in a context in which it is virtually certain that civilians will start as a result. But the interpretive debate really hinges on how to understand concepts of intent and method of warfare in this context.
00:08:29 - that narrow interpretation are focusing on the concept of intent and saying intent is really about purpose. So for a party to the conflict to intentionally use starvation as civilians as a method of warfare, it has to be purposefully fully trying to achieve that particular outcome. And method is interpreted narrowly to bolster that. And then starvation is interpreted to really focus exclusively on this end state
00:09:00 - with sustaining life. Nly, the argument focuses on this concept of military necessity. Those who operate in the area of international humanitarian law be very familiar with the concept of military necessity as an underpinning principle. In international humanitarian laws, I think better translated as military efficacy. But the basic idea here is that when one has a defended area that is a populated area, particularly an urban environment,

Ethics of Starvation in Warfare

00:09:32 - that area in a context in which it's highly populated and defended. One way to achieve that objective is to cut off the supply of essentials to the adversary and seek to squeeze them into capitulation. But because it's impossible to determine who within that populated area will draw on particular deliveries of food or water or other essentials, the only way to do it on this view is to cut off the area as a whole. And because that is a militarily effective way
00:10:03 - of taking this particular location, those who advocate this version of the prohibition argue that therefore the interpretation of the law has to be such as to allow that kind of operation to take place. And that militates in favor of seeing the prohibition is attaching only when the ultimate purpose is putting civilians in a situation of starvation, which on this view would not be the case if the purpose is simply to squeeze the combatants within that civilian population and
00:10:36 - Again. I think that's fundamentally incorrect as a way of interpreting the law. But that's part of the way that the normative argument around military necessity relates to the doctrinal focus on a narrow understanding of intent and method of warfare. The first difficulty, I think, starting with the normative component of this debate is that military necessity is never available as an underpinning principle of international humanitarian law in isolation.
00:11:06 - with a countervailing principle, which is the principle of humanity. And the product of the tension between those two principles is often a bright line prohibition from which there is subsequently no military necessity, caveat, no basis for reinterpreting the prohibition in a narrower way to allow for a particular military imperative. And there are many examples of this, but the example that I think is most relevant to this particular context is the prohibition on attacks on
00:11:39 - So if you take exactly the same population that might be subject to a starvation siege, everybody agrees that it is clearly prohibited a war crime and indeed a crime against humanity to indiscriminately carpet bomb, that population as a whole and one can't simply refer to. Well, what we're trying to do is to neutralize the combatants within that population, and it's difficult to figure out who's a combatant and a civilian, so we're just gonna attack everybody.
00:12:10 - And it would indeed, as I said, be a war crime and a crime against humanity because international humanitarian law has a clear principle here, which which is that a civilian population does not at the aggregate level lose its civilian character in virtue the presence of combatants within that population. So at least where the population is predominantly civilian, the population is as a whole, is civilian, and any operation directed at the population as a whole is an operation directed at a civilian population and therefore can qualify as a crime against humanity and a war crime.

Humanity, Warfare, and the Ethics of Deprivation

00:12:42 - if what we're looking at is deprivation directed at that population as a whole as compared to a kinetic attack directed at the population as a whole? And it can't be that we are eScribing the purpose with reference to squeezing combatants because we can't redescribe the purpose of the kinetic attack as neutralizing combatants. And it can't be simply that the operation would be militarily effective because a kinetic attack of that kind could also be militarily effective. But it's so undermining of the human humanity principle
00:13:13 - And so what then is the argument, and I think the argument that sometimes it's explicit and sometimes implicit really relies on the concept of time and ity. And the idea here is that kinetic attack has the immediate impact of injuring and killing civilians and combatants indiscriminately, whereas the deprivation operation, cutting that population off from the supply of food, water, and other essentials does not have that kind of immediate effect.
00:13:44 - And the fact at that time offers the possibility of harm mitigation of the harm being mitigated through capitulation, through civilians rising up against the authority under which they're operating, through civilians fleeing the area and so on. And all of that allows for eScribing the purpose as eliciting that capitulation before the ultimate end state of civilians being in a state of starvation. And that to get to your question goes to this issue of
00:14:16 - to arguments that are sometimes offered relating to torture and necessity arguments in that context, particularly ticking bomb type arguments where the claim is sometimes made that, well, the person who's being subject to this kind of impact has the possibility of mitigating its effect through capitulating, through providing the information or capitulating in whatever other ways demanded by the interrogator. That argument I think is not at all persuasive.
00:14:47 - and there are various reasons for that, some of which go to questions about whether it's ever effective, the institutional effects of allowing torture in even extreme circumstances. And I think those arguments are persuasive, but I think the most persuasive is an argument that goes to what is fundamentally humanity destroying about torture. And that argument has been offered by philosophers such as David Sussman and Henry Shu. And really what's at the crux of that argument is that torture doesn't simply work
00:15:21 - particular context against a cost that is escalating, that they then have to at certain point make a decision whether that cost is sufficient to warrant relieving themselves of that commitment. Rather, the way that torture works is to inflict severe pain and suffering on the victim in a way that as Susman puts, it becomes their whole world to the point at which it's not even possible to think about that kind of calculation anymore.

Starvation as a Form of Torture

00:15:49 - biological imperative to be free from pain and suffering that precludes sustaining even those high order commitments for which one would in principle sacrifice everything. And so it is uniquely destructive of our humanity because that is one of the core components of our humanity, our capacity for higher order commitments for which we would be willing to sacrifice. But seeing torture in that way and seeing the bright line prohibition on torture in that way, I think is illuminating of how we might think about starvation methods.
00:16:23 - of deprivation might lead to capitulation before the end state of a level of malnutrition incompatible with sustaining life is precisely through breaking the will of the civilian population that's affected that in that way through putting the biological imperative to be free from the suffering associated with extreme hunger against their high order political and social commitments to maintain solidarity,
00:16:53 - to the authority under which they're operating. And so essentially it involves torturing them into submission, not simply escalating costs, but inflicting suffering to the point at which it's not even possible to contemplate a trade off between costs and benefits. But instead even those high order commitments for which one would sacrifice everything are supplicate to this biological imperative to be free from pain and suffering. And even in context in which the besieging party takes the
00:17:23 - through the civilian population in that way. We don't even think they have the capacity to determine the decision around capitulation because ultimately their supplicant to authority that's not responsive to their will. Even then, the only way in which combatants are gonna be squeezed in this context, given that we know that combatants are always gonna be the last to starve, they're the ones with the guns, they're not gonna be the first to starve, is through inflicting this level of suffering on the civilian population in a context in
00:17:56 - what happens is social bonds break, social norms start to collapse the web of social and moral concern contracts as the biological imperative to be free from pain and suffering, precludes sustaining those kinds of social norms and commitments to community, to social and political systems, and even to family in a way that ultimately involves the torture of those individuals and really the torture of the society as a whole, regardless
00:18:29 - and breaking the will of the civilian population. And so seen in that way, the ity of this process is not actually a mitigating factor. It's instead constitutive of what is uniquely torturous about this particular phenomenon. And so in that sense, I think the normative framing of those who advocate the narrow prohibition totally misses this component of this particular practice. Much of what we've been discussing so far is really at the level of the underlying normative debate,

Legal Framework on Starvation in Warfare

00:18:58 - what the law actually says on this? And I mentioned a couple of concepts that are relevant here earlier. One is that a civilian population doesn't lose its civilian character simply in virtually the presence of combatants. Another is that objects indispensable to civilian survival are subject to a heightened level of protection and prohibition around attacks on those objects. A third component here that's worth introducing is how to understand the concept of intent. And in the international criminal court framework,
00:19:31 - to understanding the meaning of intent, there are two forms of intent, direct intent and oblique intent. Direct intent refers precisely to this notion of purpose, of intent of acting with a particular purpose. But oblique intent is the concept that one can have intent vis-a-vis a particular consequence, even when that consequence is not one's purpose, but where it is the virtually certain result of one's action. And either of those can qualify
00:20:04 - A second component here is to understand what starvation means, and particularly what starvation of civilians is a method of warfare means. And there are two components to thinking about this. One is that starvation has both transitive and int transitive meanings. Intransitively. When we use the term salvation, we're talking about that level of malnutrition at which we're no longer in a state that's compatible with sustaining life. But transitively starvation is a practice, it's the practice
00:20:31 - And one engages in that practice before the point at which the individual who's being starved is in a state of starvation. As soon as one is engaging in a practice of sustenance denial with respect to an individual or a collective. One is engaging in the practice of starvation, the transitive practice of starvation that then should be incorporated alongside the relationship between the rules on objects indispensable civilian survival. And the prohibition of starvation of civilians is a method of warfare because the way that it's codified,
00:21:05 - and in my view, mutually constitutive with the rules on the objects, the protection of objects indispensable civilian survival, really being a lab, an elaboration of the prohibition of salvation, of civilians as a method of warfare and taking all of these things together. The direction I think it leads is understanding the crime of intentionally using salvation of civilians as a method of warfare, as attaching whenever a particular individual group is engaged in
00:21:39 - to its survival, whether that deprivation is through attack, through destruction, through removal, through impeding humanitarian relief, through impeding the access of that population to agricultural lands or any other mode of deprivation. And is doing that in one of two contexts, either direct intent with the purpose of denying sustenance to that population where that population is mixed, or at the very least, where it's predominantly civilian and

Understanding Starvation as a Warfare Strategy

00:22:10 - even if the ultimate goal is to squeeze combatants or where that deliberate deprivation is occurring for any other reason where the known consequence is civilians being in an end state of starvation. And so this combines both the oblique intent distinction and the distinction between transitive and int transitive states of starvation. And what's critical about it, particularly given that starvation often occurs in a crowded causal context,
00:22:39 - But there are all sorts of other factors that lead to the end state of starvation, and it occurs over time. The crucial thing is that this prohibition attaches at the moment of deliberate deprivation where that's done for sustenance denial regardless of questions of causation and end state results, or once the situation has become sufficiently dire to any deprivation, regardless of the reasons for that deprivation, because the deprivation is virtually certain to cause starvation.
00:23:11 - They apply at different stages in this process and in combination, they're essential to a functional and effective criminal law prohibition in this context. So the first thing is to emphasize the moral toxicity of this practice. And I think that really requires focusing on this torturous process from start to finish rather than simply on the end stage at which the momentum of famine has already taken hold.
00:23:41 - of this practice early so that we can act in response to that early. The second is to inform legal authorities, courts, prosecutors, and legal advisors within militaries about these legal frameworks and to ensure that they are applied effectively through the various processes. And the third is that I think as a community of scholars, what we need to do is bring some of these normative arguments, legal arguments together
00:24:26 - and famine, and build an interdisciplinary understanding of this process as a whole that can be maximally compelling in changing policies and behaviors in relation to these issues.

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