Examining a Norm of Customary International Law that Criminalises the Intentional Use of Starvation of the Civilian Population as a Method of Warfare

Abstract

The criminalisation of intentionally using starvation of civilians as a method of warfare has been laid down in the Rome Statute of the International Criminal Court as a matter of treaty law. The application of treaty law, however, is restricted and states in which current emergency situations of starvation are unfolding are often non-party States to the Rome Statute. To allow for accountability in such situations, this research seeks to contribute to the discussion whether the criminalisation of intentionally using starvation of civilians as a method of warfare could qualify as a rule of customary international law. As such, the provisions could apply to contemporary situations of intentional starvation - not on the basis of the Rome Statute, but on the basis that the content of those Rome Statute provisions have gained the status of customary international law. Ascertaining a rule of customary law conclusively may be hard to do. This paper intends to offer a valuable contribution, relying on the International Law Commission’s draft conclusions on the identification of customary international law, and more particularly the valuable guidance it offers in relation to the identification of both opinio juris and general (state) practice. As such this paper also aims to take part in the discussion on the identification of customary international law rules generally. In the process, the connection between the customary IHL rule on the prohibition of using starvation of the civilian population on the one hand, and the framework of international criminal law on the other is explored.