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Denying Humanitarian Access as an International Crime in Times of Non-International Armed Conflict: The Challenges to Prosecute and Some Proposals for the Future

Published online by Cambridge University Press:  28 September 2015

Rogier Bartels
Rogier Bartels*
Affiliation:
Rogier Bartels is a Legal Officer in Chambers (Trial Division) at the International Criminal Court and a Research Fellow (Military Law Section) at the Netherlands Defence Academy.
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Abstract

Impeding humanitarian access and the starving of civilians is prohibited under international humanitarian law in times of both international and non-international armed conflicts. Such conduct is criminalised under the Rome Statute of the International Criminal Court (ICC Statute) when committed during an international armed conflict. However, without good reason, it is not a war crime when committed during a non-international armed conflict. Contemporary conflicts, such as that in Syria, show that this is a problematic omission. This article addresses the challenges in prosecuting the denial of humanitarian access during international armed conflicts and examines the options to prosecute before the International Criminal Court such denial in times of non-international armed conflict as other war crimes, crimes against humanity, and genocide. The author concludes that these options would not suffice and proposes to add to the ICC Statute the starvation of the civilian population, including through impeding humanitarian access, as a war crime for non-international armed conflicts.

Keywords

humanitarian assistancearmed conflictinternational humanitarian lawinternational criminal lawInternational Criminal Court
Type
Articles
Information
Israel Law Review , Volume 48 , Issue 3 , November 2015 , pp. 281 - 307
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 

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References

1 Report of the Secretary-General, Implementation of Security Council Resolution 2139, 23 April 2014, UN Doc S/2014/295 (2014), para 37.

2 See, eg, UNSC Res 2139(2014), 22 February 2014, UN Doc S/RES/2139 (2014), addressing the situation in Syria; UNSC Press Release, ‘South Sudan Leaders Must Allow Humanitarian Access, Work Together to Heal Wounds, Secretary-General Tells Security Council’, 12 May 2014, UN Doc SC/11391, on South Sudan; and UNSC Res 2149(2014), 10 April 2014, UN Doc S/RES/2149 (2014), on the Central African Republic.

3 See, eg, Médecins Sans Frontières, ‘Central African Republic: Escalating Violence Endangering Civilians and Delivery of Humanitarian Aid’, 7 March 2014, http://www.msf.org/article/central-african-republic-escalating-violence-endangering-civilians-and-delivery-humanitarian.

4 As is concluded with respect to the parties to the Syrian conflict in UN Doc S/2014/295 (n 1) paras 19, 22, 26–28, 33–37.

5 See, eg, Human Rights Watch, ‘“All You Can Do is Pray”: Crimes against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma's Arakan State’, April 2013; and Reeves, Eric, ‘On the Obstruction of Humanitarian Aid’ (2011) 54 African Studies Review 165Google Scholar.

6 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 54(1); and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II), art 14.

7 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287 (1950) (GC IV), art 23; Additional Protocol I (n 6) art 70(2).

8 Additional Protocol II (n 6) art 18(2). However, as to the consent, see the recent UN Security Council Resolution which authorised humanitarian operations into Syria, even without the consent of the Syrian government: UNSC Res 2165(2014), 14 July 2014, UN Doc S/RES/2165 (2014), para 6 (renewed by the Security Council in UNSC Res 2191(2014), 17 December 2014, UN Doc S/RES/2191 (2014)).

9 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol 1: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) (ICRC Study), r 55 of which states: ‘The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’. The updated version of the ICRC Study is available at https://www.icrc.org/customary-ihl/eng/docs/home.

10 ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, Appeals Chamber, 2 October 1995 (Tadić Jurisdiction Decision), [119].

11 Statute of the International Criminal Court for Rwanda, annexed to UNSC Res 955(1994), 8 November 1994, UN Doc S/RES/955 (1994) (ICTR Statute).

12 The UN Security Council had expressly stated its view that ‘the nature of the conflict [was] non-international in character’: Report of the Secretary-General pursuant to Paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995, UN Doc S/1995/134, para 11.

13 Until shortly before the rendering of the Tadić Jurisdiction Decision (n 10) ‘it was widely accepted that the law of war crimes did not apply in internal armed conflict’: Robert Cryer and others (eds), An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press 2010), referring to an ICRC document of 25 March 1993 entitled ‘Preliminary Remarks on the Setting-up of an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia’, which was cited in Judge Li's Separate Opinion in the Tadić Jurisdiction Decision. The ICRC was quoted as stating that ‘according to humanitarian law as it stands today, the notion of war crimes is limited to situations of international armed conflict’: Tadić Jurisdiction Decision (n 10) Separate Opinion of Judge Li, para 9. See also Meron, Theodor, ‘The International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 554Google Scholar, 559; and René Provost, International Human Rights and Humanitarian Law (Cambridge University Press 2002) 95, both of which refer to the same ICRC document.

14 Tadić Jurisdiction Decision (n 10) [117]–[127].

15 Marko Milanovic and Vidan Hadzi-Vidanovic, ‘A Taxonomy of Armed Conflict’ in Nigel D White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law (Edward Elgar 2013) 256, 256–57.

16 See, eg, Gerhard Werle, Principles of International Criminal Law (2nd edn, TMC Asser Press 2009) 361; Eve La Haye, War Crimes in Internal Armed Conflicts (Cambridge University Press 2008) 139; Darryl Robinson and Herman von Hebel, ‘War Crimes in Internal Armed Conflicts: Article 8 of the ICC Statute’ (1999) 2 Yearbook of International Humanitarian Law 196.

17 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

18 Yoram Dinstein, Non-International Armed Conflicts in International Law (Cambridge University Press 2014) 177.

19 ICC Statute (n 17) art 8(2)(b)(xxv), which reads: ‘Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.

20 In addition to the use of prohibited weapons (addressed below), the only other violations not included are art 8(2)(b)(iv), the crime of causing excessive collateral damage, and art 8(2)(viii), (xiv) and (xv). Given that the last three provisions deal with occupation and ‘the nationals of the hostile party’, it is obviously not possible to have the same crime for non-international armed conflicts.

21 ICC Statute (n 17) art 8(2)(b)(xxv), applicable during international armed conflict.

22 Michael Cottier, who was present at the Rome Conference, observes that ‘[u]ntil the very end of the Rome Conference, many delegations in fact also favored to include starvation as a war crime in non-international armed conflicts, but the “final package” did not include it in the list of war crimes in internal conflict situations’: Michael Cottier, ‘Article 8’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, CH Beck/Hart/Nomos 2008) 275, 459.

23 See, eg, Werle (n 16) 453; Claus Kress, ‘War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’ (2000) 30 Israel Yearbook on Human Rights 134; Robinson and Von Hebel (n 16) 208.

24 The non-inclusion of the crime of causing excessive incidental damage (included for international armed conflicts as art 8(2)(b)(iv)) also continues to weaken the war crimes provisions applicable to non-international armed conflicts. On this issue, see Bartels, Rogier, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials’ (2013) 46 Israel Law Review 271Google Scholar.

25 Now included as art 8(2)(e)(xiii)–(xv). See Review Conference, Resolution RC/Res.5 Amendments to Article 8 of the ICC Statute, adopted at the 12th plenary meeting, 10 June 2010.

26 As becomes clear from the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010, RC/11, in which starvation and humanitarian relief is at no point addressed.

27 ICTY Statute (Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808(1993), 3 May 1993, UN Doc S/25704, adopted by the Security Council in Resolution 827(1993), 25 May 1993), art 3 (entitled ‘Violations of the laws or customs of war’), which explicitly states that the Tribunal's jurisdiction is not limited to the examples listed under (a) to (e).

28 ICTY Chambers have held that for crimes falling within art 3 of its Statute only the (jurisdictional) requirement of ‘existence of an armed conflict’ needed to be satisfied. The Halilović Trial Chamber, for example, held that ‘[w]hen an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature’: ICTY, Prosecutor v Halilović, Judgment, IT-01-48-T, Trial Chamber I, 16 November 2005, [25]. See also ICTY, Prosecutor v Popović and Others, Judgment, IT-05-88-T, Trial Chamber II, 10 June 2010, [744]–[748]; ICTY, Prosecutor v Mrksić and Others, Judgment, IT-95-13/1-T, Trial Chamber II, 27 September 2007, [457]; ICTY, Prosecutor v Galić, Judgment, IT-98-29-T, Trial Chamber I, 5 December 2003, [22]; ICTY, Prosecutor v Simić and Others, Judgment, IT-95-9-T, Trial Chamber II, 17 October 2003, [38]; and ICTY, Prosecutor v Furundžija, Judgment, IT-95-17/1-T, Trial Chamber, 10 December 1998, [59]–[60]. According to Alexander Zahar and Goran Sluiter, the Tadić Appeals Judgment (ICTY, Prosecutor v Tadić, Judgment, IT-94-1, Appeals Chamber, 15 July 1999) ‘has been misinterpreted as dispensing with the need to decide the internationality of a conflict for war crimes other than grave breaches’: Alexander Zahar and Goran Sluiter, International Criminal Law: A Critical Introduction (Oxford University Press 2008) 112.

29 The present contribution focuses on the ICC. The ICTY, the only ad hoc tribunal dealing with a situation of armed conflict that is still in operation, is nearing completion of its work and the three cases currently pending do not deal with the denial of humanitarian access – at least, not as a (separate) crime charged. Two of the three remaining cases concern the sieges of Sarajevo and Srebrenica (Prosecutor v Karadžić and Prosecutor v Mladić). According to the indictment in each of the cases, Radavon Karadžić and Ratko Mladić directed and/or authorised ‘the restriction of humanitarian aid to Bosnian Muslim and/or Bosnian Croat enclaves located in territory controlled by Bosnian Serb Political and Governmental Organs and/or Bosnian Serb Forces in an effort to create unbearable living conditions for these inhabitants’. However, the allegations against each that ‘humanitarian aid was restricted to the enclave … in an effort to make life impossible for the inhabitants of the enclave and to remove its population’ only constitute an underlying fact to support the crimes against humanity charges for persecution and deportation: ICTY, Prosecutor v Karadžić, Prosecution's Marked-up Indictment, IT-95-5/18-PT, 19 October 2009, [57], [74]; ICTY, Prosecutor v Mladić, Fourth Amended Indictment, IT-09-92-PT, 16 December 2011, [56], [73].

30 Generally, Yoram Dinstein, ‘Siege Warfare and the Starvation of Civilians’ in Astrid JM Delissen and Gerard J Tanja, Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of Frits Kalshoven (Martinus Nijhoff 1991) 145–52.

31 General Orders No 100: Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated by President Lincoln, 24 April 1863, art 156.

32 ibid art 17 (emphasis added).

33 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461, arts 28 and 27, respectively.

34 Nuremberg Military Tribunal under Control Council Law No 10, United States of America v Wilhelm von Leeb and Others, Judgment, 27 October 1948, 563. The judges noted: ‘We might wish the law were otherwise but we must administer it as we find it’.

35 Such as GC IV (n 7) arts 23, 55, 59–62.

36 Additional Protocol I (n 6) arts 69–71.

37 Additional Protocol I (n 6) art 54.

38 Hans-Peter Gasser and Knut Dörmann, ‘Protection of the Civilian Population’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, Oxford University Press 2013) 238.

39 ICRC Study (n 9) 188. Ingrid Detter, however, submits that arts 54 and 70 of Additional Protocol I ‘prohibit siege in the old meaning and function of the term’: Ingrid Detter, The Law of War (2nd edn, Cambridge University Press 2000) 298.

40 The ICC Elements of Crimes (9 September 2002, ICC-ASP/1/3; UN Doc PCNICC/2000/1/Add.2 (2000)) clarify that the crimes listed in art 8(2)(b) of the ICC Statute can only be committed in the context of an international armed conflict. Art 8(2)(b) itself requires only a violation of IHL applicable to such conflicts, which makes more sense as this body of law can also be applicable outside an international armed conflict (eg the continued application of IHL to persons detained in relation to the armed conflict, and after the conflict ends; or when the parties, by way of special agreement (as referred to in Common Article 3), agree to apply the provisions of the 1949 Geneva Conventions to a non-international armed conflict.

41 See Ilias Bantekas, International Criminal Law (4th edn, Hart 2010) 172.

42 Draft text of 1996 as prepared by the Preparatory Committee, reprinted in M Cherif Bassiouni, The Legislative History of the International Criminal Court, Vol II (Transnational 2005) 89.

43 (n 40).

44 Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2003) 363. It is suggested by the present author that, depending on the circumstances and the length of, eg, a siege or blockade, clothing should also be included. GC IV (n 7) art 59, and Additional Protocol I (n 6) art 69(1), albeit applicable to belligerent occupation, specifically refer to clothing as part of the relief supplies that are to be given free passage. Art 23 GC IV dictates the free passage also of, inter alia, clothing for children and expectant mothers outside a situation of occupation. In support, see Stefan Oeter, ‘Methods and Means of Combat’ in Fleck (n 38) 115, 209. Further support can be found in the commentary to the 1977 Additional Protocols by Michael Bothe and others, in which the authors note with regard to the ‘illustrative list’ in art 54(2) of Additional Protocol I that ‘[a]lthough the list deals primarily with food, drinking water and objects which contribute to their production, the [Drafting] Committee's action in adopting an illustrative listing indicates that other life sustaining objects such as clothing and shelter needed to sustain life under prevailing climatic conditions may also be covered by the prohibition’: Michael Bothe, Karl Josef Partsch and Waldermar Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2nd edn, Martinus Nijhoff 2013) 382. It is noted that in a footnote, Bothe and his co-authors appear to undercut the foregoing statement by observing that ‘[t]he eagerness of the Conference to adopt the abstraction of an open ended illustrative list and its reluctance to include within it concrete objects other than those dealing with food and drink indicates that it may be difficult to establish that objects other than the latter category are intended to be protected by the Article’: ibid.

45 See Dörmann (n 44) 364–68.

46 GC IV (n 7) arts 55, 59–62; and Additional Protocol I (n 6) art 69.

47 The manner in which the ICC Statute combines into one crime violations of the principle of proportionality, as prohibited by Additional Protocol I, with causing excessive environmental damage – tracking the language of, inter alia, the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD) (entered into force 5 October 1978) 1108 UNTS 151 – is a case in point here: Bartels (n 24) 307–08. See also Jordan Paust's critique of the combining of different prohibitions under IHL in the draft crime proposed by the Preparatory Committee: Paust, Jordan, ‘The Preparatory Committee's “Definition of Crimes” – War Crimes’ (1997) 8 Criminal Law Forum 431Google Scholar, 442–43.

48 One can also starve a prisoner of war, or those otherwise deprived of their liberty in times of armed conflict –  eg the mass starvation that occurred in the Nazi concentration camps during the Second World War. However, these cases, in which the victims are in the hands or power of the alleged perpetrator and a separate duty of care exists for the detainer, are not those covered by the prohibitions of starvation included in the Additional Protocols. As such, these situations will not be addressed in this contribution.

49 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) (ICRC Commentary on the Additional Protocols), para 4791, referring to the definition given by the 1978 edition of The Shorter Oxford English Dictionary.

50 ibid paras 2089–90. See also the view of the Turkel Commission, The Public Commission to Examine the Maritime Incident of 31 May 2010 (Report 1, Part 1), para 76.

51 Additional Protocol I (n 6) art 70 states that ‘[i]f the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions’ (emphasis added). The parties to an international armed conflict are states. The provision adopted for Additional Protocol II similarly aimed to preserve the sovereignty of the state receiving the relief (for a discussion, see Emanuela-Chiara Gillard, ‘The Law Regulating Cross-Border Relief Operations’ (2013) 95 International Review of the Red Cross 356). Additional Protocol II (n 6) art 18(2) reads: ‘If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned’ (emphasis added).

52 Bothe, Partsch and Solf (n 44) 485.

53 ibid.

54 Gillard (n 51) 356.

55 ibid 360. A more in-depth discussion is available in Dapo Akande and Emanuela-Chiara Gillard, ‘Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict’, OCHA Occasional Policy Papers, No 8, 2014 (currently not yet publicly available).

56 For various views and discussions on consent for humanitarian relief operations see, eg, Ryngaert, Cedric, ‘Humanitarian Assistance and the Conundrum of Consent: A Legal Perspective’ (2013) 5 Amsterdam Law Forum 5–19Google Scholar; Gillard (n 51) 356–73; Schwendimann, Felix, ‘The Legal Framework of Humanitarian Access in Armed Conflict’ (2011) 93 International Review of the Red Cross 993Google Scholar, 998–1002; Barber, Rebecca, ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law’ (2009) 91 International Review of the Red Cross 371CrossRefGoogle Scholar, 391; Luopajärvi, Katja, ‘Is there an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?’ (2003) 15 International Journal of Refugee Law 678Google Scholar, 689.

57 Dinstein, Yoram, ‘The Right to Humanitarian Assistance’ (2000) 53 Naval War College Review 77Google Scholar, 86.

58 Cedric Ryngaert asks: ‘[D]oes a diversion [to the opposition] of 10 pct. of the (value of the) goods suffice, or should a 50 pct. or even higher threshold be maintained?’: Ryngaert (n 56) 9.

59 Stoffels, Ruth Abril, ‘Legal Regulation of Humanitarian Assistance in Armed Conflicts: Achievements and Gaps’ (2004) 86 International Review of the Red Cross 515Google Scholar, 542. As an example, she mentions the armed conflict in Somalia in the early 1990s ‘when 90 per cent of humanitarian aid was appropriated by the warlords for their own benefit’.

60 The derogation provided for in Additional Protocol I (n 6) art 54(3) and (5) refers to para 2, but not to para 1 of art 54. The ICRC commentary on this article does not pronounce on whether the prohibition of starvation is absolute, since the commentary explains that ‘a general principle only of course becomes fully operative when it is accompanied by rules of application: the remainder of the article is concerned with such application, as are several other articles in the Protocol, particularly those relating to relief actions’. It further states that para 2 ‘develops the principle formulated in paragraph 1 of prohibiting starvation of the civilian population; it describes the most usual ways in which this may be applied’: ICRC Commentary on the Additional Protocols (n 49) paras 2091 and 2098. This could be taken to mean that the derogations to para 2 may thus legitimately have an impact on para 1. On the other hand, the commentary on the sister provision in Additional Protocol II is significantly more resolute: ‘The prohibition on using starvation against civilians is a rule from which no derogation may be made. A form of words whereby it would have been possible to make an exception in case of imperative military necessity was not adopted’: ibid para 4795.

61 Additional Protocol I (n 6) art 54(5). See also the exceptions listed in para 3 of the same article. As to these exceptions, however, note the disclaimer provided for in art 54(3)(b).

62 Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press 1995) art 102(a).

63 ibid art 102(b). See, however, the Report of the Secretary-General's Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011, which sets out (in para 80) that in the case of a blockade ‘if necessary, the civilian population … must be allowed to receive food and other objects essential to its survival’.

64 Compare Cottier (n 22) 465–66.

65 Compare Rottensteiner, Christa, ‘The Denial of Humanitarian Assistance as a Crime under International Law’ (1999) 81 International Review of the Red Cross 555Google Scholar, 580–81. With respect to the non-international armed conflict in Somalia, the UN Security Council demanded that ‘all parties … immediately cease hostilities, maintain a cease-fire throughout the country, … in order to promote the process of relief distribution’: UNSC Res 794(1992), 3 December 1992, UN Doc S/RES/794 (1992), para 1.

66 For example, the idea of joint criminal enterprise is not recognised before the ICC. There is discussion whether recklessness, accepted by the ICTY, fulfils the required intent and knowledge under the ICC Statute.

67 For an overview of academic opinion on the different sides of the debate, see Florian Jessberger, ‘Omission’ in Antonio Cassese and others (eds), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 446.

68 Per Saland, ‘International Criminal Law Principles’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International 1999) 189, 212.

69 ‘A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court’: ICC Statute (n 17) art 22(1).

70 Saland (n 68) 195.

71 Cryer and others (n 13) 363.

72 Maria Kelt and Herman von Hebel, ‘The Making of the Elements of Crimes’ in Roy S Lee and others (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational 2001) 14; Cryer and others (n 13) 363.

73 See ICC Statute (n 17) art 9.

74 The Pre-Trial Chamber held by majority in Al Bashir that the Elements of Crimes (n 40) ‘must be applied unless the competent Chamber finds an irreconcilable contradiction with the Statute’, following which ‘the provisions in the Statute must prevail’: ICC, Prosecutor v Al Bashir, Case No ICC/02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, [117]–[120], [128], [131]. However, strict application will not always be possible. For example, the first element for the war crime of perfidy (Article 8(2)(e)(ix) of the ICC Statute) refers to ‘one or more combatant adversaries’. Since no combatant status exists in times of non-international armed conflict, this element cannot be fulfilled. Indeed, Schabas observes that Pre-Trial Chamber I overstated the role of the elements of crimes: William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 408. Leena Grover correctly observes that the language of art 9(1) means that the elements ‘must be considered but may or may not be applied’ (emphasis omitted): Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press 2014) 189.

75 This would also constitute a crime under art 8(2)(b)(xxiv) of the ICC Statute (n 17).

76 ICC Statute (n 17) art 30(2)(b).

77 See, however, Cottier ((n 22) 465) who submits that ‘delegations at the Diplomatic Conference may not have had the intent to deviate from the general rules regarding the mental element’. He points to the general introduction to the Elements of Crimes (n 40), in which it is mentioned that art 30 of the ICC Statute applies if no reference to the mental element is made in the respective elements of a crime. No such reference is made in the Elements of Crime for art 8(2)(b)(xxv). Schabas ((n 74) 214) suggests, albeit with regard to the war crime of murder, that the term ‘wilful’ is ‘probably synonymous with “intentional”, and does not serve to make the provision in any way an exception to the general rule on the mental element laid down in Article 30 of the Statute’. For a discussion of whether the recklessness standard applies before the ICC, see Elies van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press 2012) 48–50.

78 See Dörmann (n 44) 364. It has been suggested that therefore only ‘to deliberately provoke, increase or prolong the starvation by deprivation of objects indispensable for the survival with an aim to gain a military advantage’ falls within the war crime as included in the ICC Statute: Cottier (n 22) 465. According to Cottier, ‘forcing civilians to transfer to another area or state’ would be included in such military advantage, as it ‘may present a military gain in that the political and physical control over this territory or area is enhanced or will be easier to establish’: ibid. The present author does not agree that forcible transfer or deportation could qualify as military advantage, but Cottier's description illustrates the high threshold for behaviour to fall within the prohibited conduct. A better understanding of the phrase ‘method of warfare’, in the context of the current crime, is to see it as ‘a weapon to annihilate or weaken the population’: ICRC Commentary on the Additional Protocols (n 49) para 2090.

79 United Kingdom Ministry of Defence (UKMoD), The Manual of the Law of Armed Conflict (Oxford University Press 2004) para 5.27.2.

80 Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press 2012) 424.

81 UKMoD (n 79) para 5.27.2.

82 See San Remo Manual on the Law of Non-International Armed Conflict (International Institute of Humanitarian Law 2006) r 2.3.10; see also Sivakumaran (n 80) 424.

83 eg, San Remo Manual, ibid r 5.1.

84 The Elements of Crimes (n 40) require that ‘[t]he perpetrator intended to starve civilians as a method of warfare’. See also Bantekas (n 41) 172; and Cottier (n 22) 465–66.

85 eg, ICC Statute (n 17) art 8(2)(b)(iv) also does not require a result.

86 See, eg, Cottier (n 22) 465.

87 The US had proposed to include the element ‘[t]hat as a result of the accused's acts, one or more persons died from starvation’: United States of America, Proposal regarding an Annex on Definitional Element for Part 2 Crimes, 19 June 1998, UN Doc A/CONF.183/C.1/L.10; and Proposal Submitted by the United States of America: Draft Elements of Crime, 4 February 1999, UN Doc PCNICC/1999/DP.4/Add.2, 18. See also Dörmann (n 44) 364.

88 eg, because the witnesses were found not be to credible, or certain materials could not be authenticated.

89 It is, of course, likely that an act of denying humanitarian assistance that did not result in the death of civilians would not be considered to be sufficiently grave to warrant prosecution before the ICC. The ICC Statute (n 17) art 17(1)(d) mandates that a case is inadmissible if it ‘is not of sufficient gravity to justify … action by the Court’. The ICC Office of the Prosecutor set out its views on gravity in its report on the registered vessels of Comoros, Greece and Cambodia, in which it determined that although ‘a reasonable basis [exists] to believe that war crimes were committed on board the Comorian-registered vessel (the Mavi Marmara) during the interception of the flotilla on 31 May 2010’, the matter was not sufficiently grave for it to proceed with an investigation': ICC Office of the Prosecutor, ‘Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report’, 6 November 2014, paras 133–48.

90 The document entitled ‘Food Consumption in the Gaza Strip – Red Lines’, mostly referred to as the ‘Red Lines document’, was obtained by Gisha through legal action against the Israeli government: Gisha, ‘Food Consumption in the Gaza Strip – Red Lines’, October 2012, http://www.gisha.org/UserFiles/File/publications/redlines/redlines-position-paper-eng.pdf.

91 Amira Hass, ‘2,279 Calories per Person: How Israel Made Sure Gaza Didn't Starve’, Ha'aretz, 17 October 2012, http://www.haaretz.com/news/diplomacy-defense/2-279-calories-per-person-how-israel-made-sure-gaza-didn-t-starve.premium-1.470419. A government official had previously said: ‘The idea is to put the Palestinians on a diet, but not to make them die of hunger’: Conal Urquhart, ‘Gaza on Brink of Implosion as Aid Cut-off Starts to Bite’, The Guardian, 16 April 2006, http://www.theguardian.com/world/2006/apr/16/israel. In addition to it being questionable whether this could qualify as a method of warfare, such a statement illustrates that, in light of the required special intent to starve the civilian population, the alleged Israeli policy, although objectionable, without more would not amount to intentionally starving the civilian population.

92 Emphasis added.

93 Cottier (n 22) 462. The drafting history does not explain why specific reference to the ‘Geneva Conventions’ was made. The drafters consulted by the present author cannot recall a reason for this reference. Although it is possible that it was purposely avoided to make reference to the Additional Protocols, as the customary status of certain provisions contained therein had been subject to fierce debate during the Rome convention, there is no reason why a general reference to IHL could not be made instead. While some other war crimes provisions also refer to the ‘Geneva Conventions’ (eg, ICC Statute (n 17) art 8(2)(b)(vii) and (xxiv)), other parts of art 8 include phrases such as ‘protection … under the international law of armed conflict’ (eg, ICC Statute (n 17) art 8(2)(b)(iii) and (xx)). When one compares the various war crimes, it becomes clear that the references to the Geneva Conventions are to the protection regime included in the Geneva Conventions framework (ie Geneva law), while the references to ‘international law of armed conflict’ are used to refer to treaties that do not fall within the Geneva Conventions framework, such as the prohibited weapons treaties. It therefore appears most likely that the drafters did not make a conscious choice aimed at excluding the Additional Protocols, but rather considered that the rules relevant to humanitarian relief were only found in Geneva law.

94 Knut Dörmann appears to be of the same view. Under the heading ‘Including impeding relief supplies as provided for under the Geneva Conventions’, he includes provisions of the 1949 Geneva Conventions as well as Additional Protocol I in his overview of relevant provisions that ‘specifically address relief supplies’: Dörmann (n 44) 366–73. It should be noted, however, that Dörmann also includes parts of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Doswald-Beck (n 62)) in this overview, whereas this Manual clearly is not part of the Geneva Conventions framework.

95 UNSC Res 2165(2014) (n 8).

96 Völkerstrafgesetzbuch, 26 June 2002, BGBl I, 2254, s 11(1) subs 5, states (in relevant part): ‘… oder Hilfslieferungen unter Verstoß gegen das humanitäre Völkerrecht behindert’, which can be translated as: ‘ … or impedes relief supplies in contravention of international humanitarian law’.

97 ICC Statute (n 17) art 66(3).

98 ICC Statute (n 17) art 66(2).

99 Rules of Procedure and Evidence of the International Criminal Court (entry into force 9 September 2002), ICC-ASP/1/3 (Part II-A).

100 Some armed groups continue to be organised along the lines of classic armed forces, such as the Colombian rebel force, the Fuerzas Armadas Revolucionarias de Colombia (FARC).

101 Current examples include the Islamic State of Iraq and the Levant (ISIS), Boko Haram in Nigeria, and Al-Shabaab in Somalia.

102 Other examples include the recent situations in northern Mali and Nigeria, as well as the enduring insecurity as a result of armed violence in the Great Lake region and Somalia.

103 Examples include the Central African Republic and the eastern provinces of the Democratic Republic of Congo: see, eg, Jason Stearns, Judith Verweijen and Maria Eriksson Baaz, The National Army and Armed Groups in the Eastern Congo: Untangling the Gordian Knot of Insecurity (Rift Valley Institute 2013).

104 eg, David Kilcullen, ‘Counter-insurgencey Redux’ (2006) 48 Survival: Global Politics and Strategy 111–30.

105 Schabas (n 74) 213.

106 eg, Djamchid Momtaz, ‘War Crimes in Non-International Armed Conflicts under the Statute of the International Criminal Court’ (1999) 2 Yearbook of International Humanitarian Law 183.

107 Cottier (n 22) 459.

108 Robinson and Von Hebel (n 16) 208. These authors remark that ‘[t]he inclusion of this crime in the context of internal armed conflicts did not appear to garner sufficient support, notwithstanding that the prohibition is explicitly included in Art. 14 of Additional Protocol II’.

109 ICC Statute (n 17) art 8(2)(b)(iv).

110 Additional Protocol I (n 6) arts 51(5)(b), 57(2)(a)(iii) and (b).

111 Bartels (n 24) 292–93; Schabas (n 74) 197.

112 The ILC's commentary to draft article 22 explains that ‘the words “armed conflict” cover … also non-international armed conflicts covered by article 3 common to the four 1949 Geneva Conventions’: Report of the International Law Commission on the Work of its Forty-Third Session, 29 April–19 July 1991, UN Doc A/46/10 (initially distributed as Official Records of the General Assembly, Forty-Sixth Session, Supplement No 10) 105.

113 ibid 97, 105.

114 Draft art 20(c) as included in the Draft Statute for an International Criminal Court (in Report of the International Law Commission on the Work of its Forty-Sixth Session, 1 September 1994, UN Doc A/49/335 11).

115 Included under draft art 20(e) as ‘crimes, established under or pursuant to the treaty provisions listed in the Annex, which having regard to the conduct alleged, constitute exceptionally serious crimes of international concern’: ibid 11. The Annex (‘Crimes pursuant to Treaties’) lists in para 1 the grave breaches of the 1949 Geneva Conventions and Additional Protocol I: ibid 30.

116 Chairman's revised informal text, reproduced in Bassiouni (n 42) 91.

117 ‘Decisions taken by the Preparatory Committee at its Session held 11 to 21 February 1997’, reproduced in Bassiouni (n 42) 87, 89.

118 ICRC, ‘War Crimes’, Working Paper prepared by the ICRC for the Preparatory Committee for the Establishment of an International Criminal Court, 13 February 1997. The ICRC's proposal was later submitted as a joint Switzerland–New Zealand proposal (A/AC 249/1997/WG.1/DP.2 (1997)).

119 Cottier (n 22) 459.

120 Art 20(c)(s) as included in the ‘Decisions taken by the Preparatory Committee at its Session held 1 to 12 December 1997’, reproduced in Bassiouni (n 42) 80.

121 ibid 83, Option II.

122 Zutphen Draft (A/AC.249/1997/L.9/Rev.1) and 1998 Preparatory Committee, reproduced in Bassiouni (n 42) 72 and 75, and 64 and 66, respectively.

123 Schabas (n 74) 198.

124 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, Vol II, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, Rome, 15 June–17 July 1998, UN Doc A/CONF.183/13 (Vol.11), 319–48.

125 Cottier (n 22) 459.

126 Robinson and Von Hebel (n 16) 208.

127 However, as noted above, an explanation does exist for the lack of support to adopt a violation of the proportionality principle as a war crime for non-international armed conflicts.

128 The drafters consulted by the author (including the chair of the Working Group on the definition of war crimes and the chair of the Committee of the Whole) do not recall any specific reasons for the non-inclusion and agree that the omission is likely to have been unintentional.

129 ICC Statute (n 17) art 22(2) states (in relevant part) that ‘the definition of a crime shall be strictly construed and shall not be extended by analogy’.

130 See Machteld Boot, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Intersentia 2002) 607–08.

131 In the first two cases before the ICC, the classification of the relevant conflict changed over the course of the trials. In both Lubanga and Katanga and Ngudjolo, the charges were confirmed for an international armed conflict, but in the trial judgments the conflict was found to be non-international in character: ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06, Trial Chamber I, 14 March 2012, [566]–[567]; and ICC, Prosecutor v Katanga, Jugement rendu en application de l'article 74 du Statut, ICC-01/04-01/07, Trial Chamber II, 7 March 2014 (Katanga Trial Judgment), [1229]–[1230], respectively). In these cases, the consequence of the Trial Chambers re-characterisation from international to non-international armed conflict, pursuant to reg 55 of the Regulations of the Court, was (arguably) limited as the crimes charged consisted of (more or less) the same form for both types of conflict. Indeed, the Katanga Trial Chamber said that it ‘underscores that the new characterisation of the armed conflict does not prompt it to modify the legal elements of the alleged crimes in substance. It further notes that the same facts and circumstances are clearly at issue’ (official translation): ibid, para 1230. However, in the case of charges for the war crime of starvation, changing the character of the conflict would obviously have significant consequences.

132 For non-international armed conflicts: ICC Statute (n 17) art 8(2)(e)(iii).

133 The ‘[i]mposition of collective penalties’ was considered a war crime by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, set up after the First World War: ‘Commission on Responsibility of the Authors of the War and on Enforcement of Penalties’ (1920) 14 The American Journal of International Law 114. It is further listed as a war crime in art 4(b) ICTR Statute (n 11) and art 3(b) of the Statute of the Special Court for Sierra Leone (entered into force 12 April 2002) 2178 UNTS 139.

134 Additional Protocol I (n 6) art 75(2)(d); and Additional Protocol II (n 6) art 4(2)(b).

135 The ICRC's customary IHL study includes the prohibition of collective punishments: ICRC Study (n 9) 374–75, r 103.

136 Rottensteiner (n 65) 562–67. She also mentions willful killing. These crimes are included in the ICC Statute (n 17) art 8(2)(a)(i) (‘[w]ilful killing’) and (c)(i) (‘murder, cruel treatment and torture’). Wilful killing and murder are considered to have the same meaning and address the same conduct, with the former committed in times of international armed conflict, and the latter during conflicts not of an international character: Dörmann (n 44) 394; and Katanga Trial Judgment (n 131) [789].

137 eg, the Elements of Crimes (n 40) for art 8(2)(a)(i) of the ICC Statute.

138 ICC Statute (n 17) art 8(2)(c) explicitly states that it concerns violations of Common Article 3. As a concise version of the minimum rules contained in the 1949 Geneva Conventions, which do not deal with conduct of hostilities, Common Article 3 similarly does not deal with Hague Law (ie conduct of hostilities). See also ICRC Commentary on the Additional Protocols (n 49) para 4776, and Schabas (n 74) 197.

139 Gerhard Werle ((n 16) 453) submits that ‘[o]verlap is also possible with … willful infliction of great suffering or serious injury to physical integrity or health under Article 8(2)(a)(iii) of the ICC Statute’. However, prosecution for this international armed conflict war crime is similarly limited to protected persons. Indeed, Cottier, to whom Werle refers, notes that ‘[a]cts qualifying as the war crime of starvation … might also amount to other war crimes under the jurisdiction of the ICC … [such as] article 8 para. 2 (a) (iii) criminalizing the willful causation of great suffering or serious injury to body or health of an adversary in the power of the party to the conflict to which the perpetrator belongs’: Cottier (n 22) 459–60 (emphasis added). Cottier and Werle presumably refer to situations where persons in the power of the perpetrator, such as detainees or prisoners of war, are starved.

140 ICC Statute (n 17) art 8(2)(c)(ii).

141 ICC, Prosecutor v Katanga and Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04-01/07, Pre-Trial Chamber I, 30 September 2008, [267].

142 Additional Protocol I (n 6) art 49(1) defines attacks as ‘acts of violence against the adversary, whether in offence or in defence’. See also Dörmann (n 44) 134. Attacks taking place during non-international armed conflicts similarly constitute ‘acts of violence’: Katanga Trial Judgment (n 131) [798].

143 Silja Vöneky observes that although ‘[t]he catalogue of grave breaches contained in Article 85 [Additional Protocol] I does not expressly mention the violation of Article 54 [Additional Protocol] I … starvation of a population through destruction of facilities, institutions, and objects necessary for the survival always constitutes an attack on the civilian population’: Silja Vöneky, ‘Implementation and Enforcement of International Humanitarian Law’ in Fleck (n 38) 676.

144 Notably, ICC Statute (n 17) art 8(2)(e)(i), like the war crime of causing starvation, does not have a result requirement: Dörmann (n 44) 131).

145 ICC Statute (n 17) art 5.

146 Art 5 of the ICTY Statute (n 27) reads, in relevant part: ‘The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population’ (emphasis added). Later tribunals and courts, such as the ICTR and the ICC, do not require crimes against humanity to have a nexus with armed conflict. On this issue see, eg, Cryer and others (n 13) 234–35; and, in more detail, Darryl Robinson, ‘Crimes against Humanity: Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience’ in Flavia Lattanzi and William A Schabas (eds), Essays on the Rome Statute of the International Criminal Court: Vol I (Il Sirente 1999) 139–49.

147 eg, Germain Katanga, who was convicted, inter alia, for crimes against humanity committed during fighting that was classified as a non-international armed conflict: Katanga Trial Judgment (n 131).

148 In the cases of Ivory Coast and Libya, for example, the prosecution only charged crimes against humanity, even though in both countries a non-international armed conflict was (most likely) in existence at the time of the alleged crimes. In Gbagbo, both the prosecution and the defence considered a non-international armed conflict between forces loyal to the accused and the opposition to be in existence at the time of the alleged crimes, yet only crimes against humanity were charged: ICC, Prosecutor v Gbagbo, Document Amendé de Notification des Charges, ICC-02/11-01/11-357-Conf-Anx1, ICC-02/11-01/11, [14]; and ICC, Prosecutor v Gbagbo, Transcript of Hearing, ICC-02/11-01/11, ICC-02/11-01/11-T-18-Red-ENG WT, 25 February 2013, [15]–[18] respectively. In Blé Goudé, Pre-Trial Chamber I could have refrained from pronouncing on the existence of an armed conflict, as Charles Blé Goudé was also only charged with crimes against humanity, but it held that ‘[b]y 23 February 2011, … the situation in western Côte d'Ivoire had degenerated into a non-international armed conflict between pro-Gbagbo and pro-Ouattara forces’: ICC, Prosecutor v Blé Goudé, Decision on the Confirmation of Charges against Charles Blé Goudé, ICC-02/11-02/11-186, Pre-Trial Chamber I, 11 December 2014, [105].

149 International Military Tribunal at Nuremberg, Judgment and Sentences, 1 October 1946, printed in (1947) 41 American Journal of International Law 249; and ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-T, 3 March 2000, [224].

150 District Court of Jerusalem, Attorney General of the Government of Israel v Eichmann, 29 May 1962, (1968) 36 ILR 5, 277.

151 Similarly, a Trial Chamber of the ICTR considered that an example of the crime against humanity of extermination would be ‘[i]mprisoning a large number of people and withholding the necessities of life which results in mass death’: ICTR, Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21 May 1999, [146].

152 Report of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, 7 February 2014, UN Doc A/HRC/25/63, para 76.

153 William Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge University Press 2011) 115.

154 Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Lee (n 72) 103.

155 Schabas (n 74) 160.

156 ICC Statute (n 17) art 7(1)(b) and (2)(b).

157 Christopher K Hall, ‘Article 7’ in Triffterer (n 22) 243

158 Elements of Crimes (n 40) art 7(1)(b), element 2.

159 ICC Statute (n 17) art 7(1)(h). Persecution consists of the severe deprivation, contrary to international law, of persons of their fundamental rights (see the first element of the Elements of Crimes (n 40) for the aforementioned article).

160 ICC Statute (n 17) art 7(1)(a). See Hall (n 157) 188–89.

161 ICC Statute (n 17) art 7(1)(k) defines as a crime against humanity, when the contextual elements are met, ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental health’. See also Kearney, Diana, ‘Food Deprivations as Crimes against Humanity’ (2013) 46 New York University Journal of International Law and Politics 253Google Scholar, 281–85. Approaching the matter from a ‘right to food’ perspective, Kearney identifies extermination, persecution and other inhumane acts as possible crimes against humanity to address ‘widespread right to food violations’: ibid 273. Rottensteiner (n 65) refers to the same categories, but also mentions torture (ICC Statute (n 17) art 7(1)(f)). However, as with the war crime of torture (discussed above), the crime against humanity of torture should not be used for situations where the victims were not in the hands of the alleged perpetrator.

162 ICC Statute (n 17) art 8(1) does mention that the ICC has jurisdiction over war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’, but this appears only to serve as guidance for the prosecutorial policy and is not an absolute requirement, or indeed an element of crime: Bartels (n 24) 308–09; see also Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press 2005) 268.

163 ICC Statute (n 17) art 7(1). Various Pre-Trial Chambers of the ICC have understood ‘widespread’ to mean that the attack against the civilian population ‘should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims’: eg, ICC, Prosecutor v Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11, Pre-Trial Chamber I, 12 June 2014 (Gbagbo Confirmation Decision), [222]. The alternative requirement that the attack be systematic ‘has been consistently understood in the jurisprudence of the Court as pertaining to the organised nature of the acts of violence and the improbability of their random occurrence’: ibid [223]; see also Katanga Trial Judgment (n 131) [1098].

164 In Gbagbo, for example, Pre-Trial Chamber I held that ‘[w]hen alleging the existence of an “attack against any civilian population” by way of describing a series of incidents, the Prosecutor must establish to the requisite threshold that a sufficient number of incidents relevant to the establishment of the alleged “attack” took place’: ICC, Prosecutor v Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11, 3 June 2013, [23]. This finding by Pre-Trial Chamber I was upheld on appeal: ICC, Prosecutor v Gbagbo, Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I of 3 June 2013 entitled ‘Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute’, ICC-02/11-01/11, 16 December 2013, [48].

165 ICC Statute (n 17) art 7(2)(a).

166 ibid.

167 See, eg, Claus Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) Leiden Journal of International Law 855.

168 According to Judge Kaul, ‘even though the constitutive elements of statehood need not be established, those “organizations” should partake of some characteristics of a State’: ICC, Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, 31 March 2010 (Kenya Investigation Decision), Dissenting Opinion of Judge Hans-Peter Kaul, [51]. Prior to Judge Kaul's dissenting opinion, the view that a state-like organisation is required had also been expressed by several influential international criminal law scholars: Schabas (n 74) 152; M Cherif Bassiouni, Crimes against Humanity in International Criminal Law (2nd edn, Kluwer Law International 1999) 244–45; Kai Ambos, Internationales Strafrecht (CH Beck 2006) 215.

169 Kenya Investigation Decision, ibid [90].

170 Pre-Trial Chamber I in Gbagbo noted the two opposing views, but considered that since ‘the organisation alleged by the Prosecutor and satisfactorily established by the available evidence would meet the threshold under either interpretation and that, accordingly, it is unnecessary for the Chamber to dwell any further on this point’: Gbagbo Confirmation Decision (n 163) [217].

171 Katanga Trial Judgment (n 131) [1119]–[1122]. Trial Chamber II explicitly rejected the argument that an ‘organisation’ must possess state-like or quasi-state characteristics, and concluded with the following: ‘[T]he organisation concerned must have sufficient means to promote or encourage the attack, with no further requirement necessary’ (official translation): ibid [1119].

172 The majority held that ‘whether a given group qualifies as an organization under the Statute must be made on a case-by-case basis. In making this determination, the Chamber may take into account a number of considerations, inter alia: (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a state; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria’: Kenya Investigation Decision (n 168) [93] (footnotes omitted).

173 It is noted that for non-international armed conflicts in which only one armed group fights the government, or only two armed groups fight each other, the relevant groups necessarily have to meet the organisational requirement for the existence of a non-international armed conflict, which is similar to the ‘considerations’ set out by the majority in the Kenya Investigation Decision (n 168): see, eg, ICTY, Prosecutor v Boškoski and Tarčulovski, Judgment, IT-04-82-T, Trial Chamber, 10 July 2008, [194]–[203]. The problem that a group may not fulfil the requirement for the purposes of crimes against humanity thus arises only with respect to other armed groups involved in such conflicts. The conflict in Syria shows that certain armed groups can be considered as organised, while others do not meet the organisational threshold.

174 ICC Statute (n 17) art 6. See ICRC Commentary on the Additional Protocols (n 49) para 2097; and Cottier (n 22) 460.

175 The crime of genocide can be committed both in and outside a situation of armed conflict.

176 Footnote to the fourth element of crimes for ICC Statute (n 17) art 6(c).

177 ICC Statute (n 17) art 6(c).

178 See, generally, William Schabas, Genocide in International Law: The Crimes of Crimes (2nd edn, Cambridge University Press 2009); and Kai Ambos, ‘What Does “Intent to Destroy” in Genocide Mean?’ (2009) 91 International Review of the Red Cross 833.

179 Fourth element of crimes for ICC Statute (n 17) art 6(a)–(c).

180 ICTY, Prosecutor v Krstić, Judgment, IT-98-33-A, Appeals Chamber, 19 April 2004, [8]. See also, eg, ICTY, Prosecutor v Popović and Others, Judgment, IT-05-88-T, Trial Chamber II, 10 June 2010, [831]; ICTR, Prosecutor v Bagilishema, Judgment, ICTR-95-1A-T, Trial Chamber I, 7 June 2001, [64]; ICTR, Prosecutor v Semanza, Judgment and Sentence, ICTR-97-20-T, Trial Chamber III, 15 May 2003, [316].

181 For an overview, see Payam Akhavan, Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime (Cambridge University Press 2012) 145–52.

182 Schabas, William A, ‘State Policy as an Element of International Crimes’ (2008) 98 Journal of Criminal Law and Criminology 953Google Scholar, 957–58. As in the case of crimes against humanity, Schabas considers that a state-like policy is required for conduct to qualify as genocide.

183 This is shown, inter alia, by the definition given by the majority of the Trial Chamber in Lubanga (n 131) to the meaning of using child soldiers to actively participate in hostilities; see, eg, Vité, Sylvain, ‘Between Consolidation and Innovation: The International Criminal Court's Trial Chamber Judgment in the Lubanga Case’ (2012) 15 Yearbook of International Humanitarian Law 61Google Scholar, 83; and Jørgensen, Nina HB, ‘Child Soldiers and the Parameters of International Criminal Law’ (2012) 11 Chinese Journal of International Law 657Google Scholar, 687.

184 See, generally, Hilmi M Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-based Crimes at the International Criminal Tribunals (Oxford University Press 2014). It could furthermore be argued that greater stigma attaches to a conviction of a crime against humanity or genocide than for a war crime: Grover (n 74) 165.

185 ICC Statute (n 17) art 121(1) and (2).

186 ICC Statute (n 17) art 121(3).

187 Cryer and others note that starvation of the civilian population would fulfil the so-called Tadić conditions: Cryer and others (n 13) 278. According to the Appeals Chamber of the ICTY, these four conditions must be met in order for criminal conduct to fall within the scope of art 3 of the ICTY Statute, ie to be considered as a serious violation of the laws and customs of war. These conditions are as follows: ‘(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met …; (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim …; (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule’: Tadić Jurisdiction Decision (n 10) [94]. These conditions indeed appear to be met for the crime of starvation for non-international armed conflicts.

188 See ICC, Resolution RC/Res.5, Amendments to Article 8 of the ICC Statute, adopted at the 12th plenary meeting, 10 June 2010.

189 See Amal Alamuddin and Philippa Webb, ‘Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute’ (2010) 8 Journal of International Criminal Justice 1225.

190 Alamuddin and Webb conclude that the following lessons about the process for altering the ICC Statute can be drawn from the smooth adoption of the 2010 weapons amendment: ‘Proposed amendments should be specific and narrow, attention should be paid to building consensus bilaterally outside of the ASP sessions and through co-sponsorship, and informal consultations should take precedence over discussions in the plenary and Working Group formats. Another amendment proposal that did not heed these lessons, the proposal to delete Article 124, failed to achieve consensus in Kampala and we are left with a provision in the ICC Statute that undermines accountability for war crimes. The Article 8 amendment set an important procedural precedent in addition to making a moderate substantive contribution to the development of IHL’: ibid 1243.

191 See Section 2.2 above. The general challenges to prosecute the war crime of starvation of civilians under art 8(2)(b)(xxv), such as the high threshold of starvation, would also apply to any crime adopted for non-international armed conflicts.

192 The German wording ‘… unter Verstoß gegen das humanitäre Völkerrecht …’ can be translated as ‘contrary to international humanitarian law’.