Starvation: From War Tactic to War Crime

International law is on the mind as the United States House of Representatives passed a bill to sanction the ICC prosecutor and other ICC officials who applied to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant, citing war crimes and crimes against humanity.

Karim Khan, ICC prosecutor, is accusing Netanyahu and Gallant of using the “starvation of civilians as a method of warfare” and of “intentionally directing attacks against a civilian population.” In a statement issued by Khan, he suggests that the ICC has gathered evidence sufficient to show that Israel has “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.” Some argue that it is Hamas, not Israel, that is responsible for the famine in Gaza. 

The warrants for Netanyahu and Gallant are indicative of modern international law’s idealism – the dream that no civilian should suffer during times of war. It is a relatively new idea, with seeds planted centuries ago.

People have been killing each other since the dawn of humanity, and all the while, there have been attempts to curb the cruel excesses of the Iron Maiden ilk. Still, warfare as we know it did not begin until around 3300 B.C. By the Bronze Age, early civilizations in Mesopotamia and North Africa had developed large armies with chains of command, supply systems, and – most importantly – treaty-making tendencies. Today, we might not think of pacts and agreements as “international law,” but the very fact that these contracts transcended national borders makes them early precursors to the field as it stands today.

The point of these treaties was to ensure that war had its limits. In ancient India, the Law Code of Manu prohibited poison-laced and flaming weapons, as well as the killing of captives. Later on, some European monarchs like the French King Charles VII attempted to rein in excesses such as pillaging.

Even as restrictions on warfare were becoming more commonplace, the starvation of a country and its army was widely viewed as an acceptable practice. Blockades and sieges were especially common during wartime; there is a reason that “starve them out” is a popular saying still today.

Few of the constraints that did exist were written down. On the whole, warfare was governed by “unwritten norms and codes of behavior and notions of chivalry and that kind of thing,” said David Bosco, author of “Rough Justice: The International Criminal Court in a World of Power Politics.”

That is, until the American Civil War. The war had been raging for about a year and had claimed over 100,000 lives by the time the commanding general of the Union army, Henry Halleck, commissioned Franz Lieber, a German jurist and combat veteran, to write military laws specific to the warfare of the day. The Lieber Code instructed commanders on how to treat fugitive slaves and Confederate prisoners of war, and it banned the murder and maiming of civilians.

One integral part of the Lieber Code was that “speed was the most important thing,” in the words of Patrick Keenan, an international criminal law and human rights professor at the University of Illinois. Lieber was interested in matching the act of war with the purpose of war; he believed every measure taken during wartime should be one step closer to peace.

“The idea was to make conflict as quick as possible,” Keenan said. “So the Lieber Code said it’s lawful to starve hostile belligerents – to starve your enemy – even if they’re unarmed, so that it leads to a speedier subjection of the enemy.”

On April 24, 1863, Abraham Lincoln officially issued “General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field,” justifying aggressive warfare while curbing its extremities.

The Lieber Code came to serve as the backdrop to several subsequent developments in international law. The Hague Conventions of 1899 and 1907 were largely based on the laws laid down in the Lieber Code, as it was the most comprehensive summary of the customs of war. The many parties to the Hague Conventions used Lieber’s jurisprudence to define war crimes and crimes against humanity.

The Hague Conventions were later key to informing the Geneva Conventions of 1949, which defined international law as we know it today. Despite the horrors that food shortages and famines inflicted on the world’s population during World War II, the 1949 conventions “accepted the legality of starvation as a weapon of war in principle.”

Considering that every major world power used starvation tactics during the war, they were unlikely to sign off on any law that made starvation illegal. In fact, the siege of Leningrad – in which approximately 1.5 million Russians died of starvation due to a Nazi blockade – was ruled to be legal by a United States military court.

It is worth noting that for all the instances of deliberate blockades and sieges, starvation is most frequently an unintended consequence of primary military objectives. Conflict can cause the disruption of supply chains and economic activity. Civilians are often displaced in times of war, cutting them off from their usual food supplies. Sometimes, resources are even purposefully redirected from the civilian population to the armed forces to ensure the vitality of the latter group.

Given the widespread use of starvation as a military strategy as well as the lack of intent that so often accompanies starvation, it was only in 1977 that two amendments to the Geneva Conventions finally outlawed starvation. The amendments, known as Protocol I and Protocol II, protect “objects indispensable to the survival of the civilian population,” among them food and water. The same wording was used in the Rome Statute, the treaty that established the ICC in 2002. In 2018, the United Nations Security Council unanimously passed a resolution condemning the use of food insecurity and starvation as a tactic of war.

The reign of Lieber’s speed-above-all philosophy has ended, and in its place now lives the dream that no innocent civilian should suffer simply because their government is at war.