The Vanishing Point of the Laws of War

The United Nations has assessed that 276 million people worldwide today are “severely food insecure.” Forty million are in “emergency” conditions, one step short of the UN’s technical definition of “famine.” By early this year the combined effects of the climate crisis, the economic fallout from Covid-19, armed conflict, and the rising costs of fuel and food had already caused a sharp increase in the number of people in need of relief. Then the Russian invasion of Ukraine suddenly shut down wheat exports from the world’s breadbasket. For five months, Russian warships blockaded Black Sea ports and stopped grain cargoes from leaving, both to strangle the Ukrainian economy and to destabilize food-importing nations to pressure the US and Europe into relaxing sanctions.  

“We face a real risk of multiple famines this year, and next year could be even worse,” UN Secretary-General António Guterres warned the General Assembly in July. Four days later he and Turkish President Recep Tayyip Erdoğan announced that they had brokered parallel deals with Russia and Ukraine to resume grain and synthetic fertilizer shipments. Despite a Russian strike on Odesa, the first ships laden with Ukrainian wheat departed on August 1. (No date is yet set for Russia to resume exporting fertilizer.) As of September 4, eighty-six ships carrying over two million tons of food had left Ukrainian ports. World prices for wheat and sunflower oil have dropped, portending lower bread prices in Egypt and easing the strain on the World Food Program (WFP) budget for emergency food aid. Speaking in the Ukrainian city of Lviv, Guterres congratulated himself and Erdoğan on the agreement, the Black Sea Grain Initiative, which would, he said, “help vulnerable people in every corner of the world.”

Lifting the Black Sea blockade is indeed an important step toward making food more affordable for tens of millions of people who before the recent price hike were already spending a third or more of their daily outlay on bread. Poor families in countries such as Bangladesh, Egypt, Lebanon, and Nigeria will become less “food insecure,” in the specialists’ parlance. For that alone, Guterres is entitled to a rare plaudit for diplomacy. But by implying that the Black Sea Grain Initiative would not only reduce bread prices and put more grain on the market but also prevent famine, the UN Secretary-General—along with many commentators—was conflating food insecurity with mass starvation, a very different kind of crisis.

Bringing Ukrainian produce back to the world market will alleviate the first but have little impact on the second. This is because almost all modern famines are caused by tactics of war. The hunger siege has long been the warmaker’s favorite weapon: it is simple, cheap, silent, and horribly effective. Even as it stopped ships laden with wheat from leaving Ukraine, Russia forced Ukrainians into cellars and kept them from getting food, water, and other essentials. The Russian army has had practice with the strategy; deprivation of everything necessary to sustain life was a major feature of the Chechen Wars. In Syria, President Bashar al-Assad’s troops spray-painted the slogan SURRENDER OR STARVE at checkpoints outside opposition enclaves, which they went on to besiege with Russian military advice and support.

According to the UN, more than half a million people in four countries—Ethiopia, South Sudan, Yemen, and Madagascar—are in “catastrophic or famine conditions.” Last week the UN and humanitarian agencies also declared “unfolding famine” in Somalia, a nation hit by a lethal combination of drought and conflict, where they have collected survey data showing that certain parts of the country are crossing the threshold from “emergency” to “famine.” Of those five countries, four are stricken by civil war. (A rare contemporary case of extreme food insecurity without civil war is Madagascar, where a sequence of unprecedented droughts has left the southern part of the island in dire straits.) Fighting in poor countries heightens food insecurity by hindering farming, disrupting food markets, and diverting scarce budgets from health and welfare programs to soldiers and arms.

Somalia aside, the other cases of extreme hunger—in Ethiopia, Yemen, and South Sudan—are found where one warring party has chosen to starve out its enemy. In contrast to Somalia, where the newly elected government is open about the nation’s plight, the authorities in those countries are determined to cover up the extent of starvation and prevent aid from reaching those they have made hungry. The fates of vulnerable people under these conditions are decided not by market prices or aid budgets but by the calculus of men who pursue starvation as policy. The victims are well aware that starvation is a political outcome rather than an impersonal misfortune—“the characteristic of some people not having enough food to eat,” as the economist Amartya Sen wrote in his book Poverty and Famines, “not the characteristic of there being not enough food to eat.”¹

In his Lviv speech on the lifting of the Black Sea blockade, Guterres avoided speaking about these starvation crimes. It was an ironic place for him to evade that topic. The twentieth century’s two most significant international lawyers lived in Lviv at different times before World War II: Hersch Lauterpacht, a principal legal advisor to the prosecution at Nuremberg who pioneered the philosophy and jurisprudence of prohibiting “crimes against humanity,” and Raphael Lemkin, who later coined the word “genocide” and campaigned for it to be recognized as an international crime. In his astonishing book Axis Rule in Occupied Europe, written during the war, Lemkin devoted far more space to the Nazis’ use of food deprivation than he did to gas chambers and death squads. The ration delivered to the Warsaw Ghetto was 184 calories per person per day, less than one tenth of what was needed for subsistence. Yet when the Allied lawyers drafted the Genocide Convention, starvation was left unnamed, subsumed under “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”—one of several elements in Lemkin’s earlier definitions of genocide that disappeared during the process of finalizing the convention.

In a recent article, the legal scholars Nicholas Mulder and Boyd van Dijk argue that starvation failed to “become the paradigmatic war crime in international law” in significant part because “the Western states that shaped international public and humanitarian law to mitigate war during the twentieth century” were also among those that “used starvation as an instrument of war.”² Britain and the US in particular, they show, “often successfully blocked restrictions on blockade” that would subject air and naval warfare to the new humanitarian restrictions for war on land. For over 150 years, the world’s paramount maritime powers—first Britain and then the US—have been more accustomed to enforcing blockades than trying to lift them, more interested in preserving the belligerents’ privilege to wage wars of hunger than in protecting the rights of the civilians those wars starve.

“War,” the German-trained American jurist Francis Lieber wrote, “is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.” That wording appears in a document known as the Lieber Code, which President Abraham Lincoln commissioned during the Civil War to codify the rules of conduct for the Union army. It is the point of departure for every subsequent effort to restrict starvation in war.

British policy on starvation, meanwhile, was shaped by the logic of maritime empire, according to which control over trade was both the means of warfare and its objective. Despite the paintings and monuments celebrating its battles against France and Spain, the Royal Navy’s main task was the quotidian one of policing blockades. During its war against Napoleon, London treated food as contraband, and its warships intercepted merchant vessels under any flag sailing in or out of ports on the European continent. Versions of this strategy lay at the center of Britain’s war doctrine for more than a century thereafter, starvation lurking unmentioned.

The first international codification of the laws of naval war was at a Paris conference in 1856, immediately after the Crimean War. On this occasion, British diplomats balanced their reliance on economic warfare with their interest in the rights of their own merchant ships in the event of a war not involving Britain. One crucial provision in the Paris Declaration, strongly backed by the US, strengthened protections on neutral shipping. Another required blockades to be effective in order to be legal, which restricted the weapon to those with the biggest navies. Half a century later, at a conference in London, these formulations were refined, but the British Parliament refused to ratify the declaration on the grounds that it would unduly restrict Britannia’s rule over the waves. Indeed, during and after World War I, up to 750,000 German civilians died of hunger and related causes after Britain declared that it would treat food destined for Germany, Austria-Hungary, and the Ottoman Empire as contraband.

All sides used starvation during the next world war. According to the exhaustive survey of the topic by the historian Lizzie Collingham, as many people died of hunger as in combat, massacres, and air raids combined.³ The German Hungerplan aimed to exterminate tens of millions of people in Poland, Ukraine, and Russia through starvation; it fell short of that number, but approximately 6 million died in those lands of that cause. Britain resurrected its ring of steel around occupied Europe and only belatedly accepted Red Cross shipments to alleviate starvation in Greece. The US called its own naval encirclement of Japan and its mining of Japanese harbors Operation Starvation.

“That we sentence 1.2 million Jews to die of hunger should be noted only marginally,” Hans Frank, the Nazi governor of Poland, wrote in his diary. His words were, sadly, heeded: starvation was the war’s footnoted crime. Within his domain was Lemberg, today’s Lviv, with a prewar population of almost 100,000 Jews, the site of pogroms, a ghetto, deportations, and mass killings—but scholars of the Holocaust would need to pore over marginalia to ascertain how many perished of starvation there. As I have shown elsewhere, the postwar trials of Richard Walther Darré, Hitler’s minister of food and agriculture, and Marshal Wilhelm von Leeb, commander of the German army that besieged Leningrad, only cemented starvation’s marginality to international criminal law. The American judges who acquitted Leeb of charges associated with starvation noted that the Lieber Code in fact permitted them. “We might wish the law were otherwise,” they said, “but we must administer it as we find it.”

After the war, the International Committee of the Red Cross proposed a thorough overhaul of the Geneva Conventions that introduced a raft of protections for civilians. In addition to prohibiting hostage-taking and reprisals against civilians, the ICRC also wanted to outlaw starvation blockades. London and Washington objected and prevailed: the law continued to permit blockades, giving the blockading power discretion over what should be allowed in, and even making Red Cross humanitarian aid conditional on the blockader’s assessment of military necessity. The new laws of war that were adopted in 1949 were radical in many spheres, but conservative when it came to starvation.

Only in 1977, after terrible war-induced famines in Nigeria and Bangladesh, was the starvation of civilians as a method of warfare expressly prohibited in the Geneva Conventions. Article 54(2) of the first Additional Protocol, adopted that year, specified:

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

The provision was aimed at ground wars. Still missing was any prohibition on obstructing supplies through naval blockade.

The beauty of blockade and sanctions, from the enforcers’ perspective, is that they are tools of bureaucratic regulation rather than displays of raw violence. The most favorable interpretation is that a well-run blockade is a measure short of war; whatever suffering it entails is at least preferable to fighting. The more cynical view is that the Atlantic powers still reserve the right to wage unrestricted economic warfare using not only ships and aircraft but also their dominant position in the world’s financial system. The US exercised that right again in the 1990s when it imposed ferocious sanctions on Iraq, contributing to a humanitarian crisis there. Asked on 60 Minutes about a report of the deaths of “over half a million children,” Secretary of State Madeleine Albright gave a response she would come to regret: “I think this is a very hard choice, but the price—we think the price is worth it.” Later evidence suggested that the death toll was considerably lower, but Albright’s response makes one wonder what number the US might have considered “worth it.”

In 2015 the US became party to another blockade. The previous year in Yemen a post–Arab Spring national democracy conference had broken down, a civil war erupted, and a political-religious group known as the Houthis marched on the capital, Sanaa. In response, Saudi Arabia put together an Arab coalition backed by the US, Britain, and France that launched what they mistakenly assumed would be a six-week blitzkrieg against the Houthis. Seven years later, that blitz is still underway. As well as a sustained air campaign and ground offensives by fractious Yemeni militias and foreign mercenaries, the Saudi-led coalition has imposed a tight air and sea blockade on the Houthi-controlled areas, shut down banking services, and imposed sanctions on remittances from abroad. The Houthi authorities worsened the crisis both through their corruption and intransigence and by taxing farmers, merchants, and aid organizations. American equipment sustains the Saudi air force, and US navy ships help to enforce the blockade in the Red Sea.

Yemen, the poorest country in the Arab world, was already dependent on food imports and facing a dire water shortage when the blockade went into effect. This year, World Food Program supplies are reaching 13 million people, more than a third of the population and a fraction of the need. The UN has bitten its tongue, unwilling to criticize the countries that fund its humanitarian programs. In December 2020 it estimated that 131,000 Yemenis had died of “indirect causes”—a euphemism for starvation and lack of medicine—since the war began. That figure hasn’t been updated. None of the warring parties have permitted international agencies to conduct the kind of surveys that would allow for a full enumeration of the toll of the crisis. They have good reason to be afraid of what the numbers might be.

In May 2018 the Netherlands led a group of nine countries to bring a draft resolution on armed conflict and hunger to the UN Security Council. The preamble to Resolution 2417 underlined “that using starvation of civilians as a method of warfare may constitute a war crime,” and the operative paragraphs called on the Secretary-General to notify the Council swiftly if armed conflict threatened to bring about widespread hunger. The resolution passed. For the first time, the world’s highest authority had explicitly deemed weaponized starvation unacceptable.

Skeptical members—including Russia, China, India, and Ethiopia—were reassured that Resolution 2417 codified existing law rather than introducing anything new. Nonetheless they have worked diligently to keep it a dead letter. Russia and China, as two of the Council’s five permanent members, hold the ultimate threat of a veto. In July, for instance, Russia vetoed a plan for a cross-border aid pipeline from Turkey into opposition-controlled areas of Syria, both to stand by its crucial Middle Eastern ally and because it strongly resists international humanitarian activities that override what it considers to be sovereign prerogatives.

Ethiopia, host of the African Union, is no less culpable. When the AU got around to discussing armed conflict and hunger this May—after four years of prevarication—its communiqué was overwhelmingly concerned with nutrition, agriculture, and trade and made not a single reference to starvation as a war crime, and only a single, incoherent sentence on hunger as a weapon: “Strongly condemns any kind of conditionality for food access and the use of starvation as instruments of war and/or access to humanitarian assistance.” Meanwhile, in its ongoing war with the Tigray People’s Liberation Front (TPLF), which controls Ethiopia’s northernmost region, the Ethiopian government under Prime Minister Abiy Ahmed has used hunger as a weapon to try to crush the bodies and spirits of Tigrayans.

In November 2020 the Federal Government in Addis Ababa launched “law enforcement operations” against the TPLF in response to what it called an unprovoked attack on its army units in Tigray. The “operations” became a war of destruction and pillage that demolished the development gains the region had made over three decades. Farmers were forced out of their homes, hospitals and clinics were ransacked, and soldiers from the federal coalition perpetrated mass killings and rapes of civilians. It all appeared to be part of a plan to reduce Tigray to penury. Tigrayan soldiers also committed violations and their attacks caused displacement, but there’s no indication that this was part of a plan to use starvation as a weapon.

In June 2021 the Tigrayans recaptured most of their region, but since then the federal government has encircled and besieged it, shutting off all banking services, telecommunications, and trade. For nine months the World Food Program was allowed to deliver less than 10 percent of the estimated minimum ration until a humanitarian truce in March eased its access modestly. Warnings of widespread hunger were sounded as soon as the fighting started, yet Guterres did not put the crisis on the Security Council’s agenda, and attempts to do so by Ireland—a non-permanent member—were said to be thwarted by the three African members along with China and Russia.

There is only one officially sanctioned way into Tigray: by air from Addis Ababa. The government restricts travel permits, allowing just a few humanitarian workers to fly there. On returning, their phones and laptops are reportedly examined for pictures or data. If they speak to the press, they risk expulsion from the country. The last foreign journalist allowed into Tigray was the New York Times reporter Declan Walsh, who was there in June 2021. Recently a French team that secretly slipped into the region released the first footage from Tigray since then. They filmed starving people gathering at a church. “They are drinking the holy water to fill their stomachs,” the team’s guide explained, breaking down in tears.

Governments that deploy starvation go to great lengths to stop the United Nations from using the word “famine.” If the required data aren’t there, the UN won’t use the word. Aid workers point out that vast numbers of children can die in a situation classed as a “food emergency,” one step short of famine. In South Sudan, a team from the London School of Hygiene and Tropical Medicine estimated that 190,000 people died from hunger, lack of medicine, and related causes between 2014 and 2018, although just several small parts of the country—in which between three and four thousand perished—were classified as suffering from famine in 2016. The food crisis hasn’t improved since, but the South Sudanese government has tightened control over the food security reporting system to ensure that the UN won’t embarrass it with another famine declaration.

Last June Mark Lowcock, then the UN’s head of emergency relief, was ready to say outright that there was famine in Tigray. But the UN system as a whole skirted around the issue with euphemistic language such as “at risk of famine” and “famine-like conditions” because no one had collected the data to prove that Tigrayans were dying of hunger. Nine months after Lowcock’s attempt to stir the UN to outrage and action—he left his post in July 2021—a Belgian-led research team estimated that up to 265,000 people had already perished in Tigray’s famine. That number will now be higher. The World Food Program recently released the findings from a survey that determined that almost a third of Tigrayan children were malnourished, but the Abiy government seems not to have allowed the staff to collect data on child deaths. Without mortality numbers, a WPF spokesperson told the press, there couldn’t be a famine declaration. “We just don’t know,” she said.

In his 1952 essay “The Problem of the Revision of the Law of War,” Lauterpacht asked what sort of law could preserve humanity when warring powers seek to make their enemies’ societies incapable of sustaining a war effort, including by destroying their food supplies and cities. Describing the laws of war as “at the vanishing point of international law,” he praised the effort that went into expanding the Geneva Conventions but noted that the revisions fell hopelessly short. “The law on these subjects,” he wrote, “must be shaped—so far as it can be shaped at all—by reference not to existing law but to more compelling considerations of humanity, of the survival of civilization, and of the sanctity of the individual human being.”

Alongside nuclear weapons, mass starvation is the vanishing point of the laws of war. We can only bring it into focus if we disallow the weapons of economic warfare—siege, blockade, and sanctions—by incorporating them in the established formulation of protecting “objects indispensable to survival.”

It is hard to see clearly the current US government’s position on hunger blockades. Former UN Ambassador Nikki Haley—a Trump appointee—voted in favor of Resolution 2417 and went on to invoke it selectively, vigorously condemning the Assad regime but not the blockade of Yemen. President Biden’s representative at the UN, Linda Thomas-Greenfield, has been more even-handed, calling out starvation crimes in Yemen and Ethiopia as well as Syria and Ukraine. Samantha Power, administrator of the US Agency for International Development and the author of A Problem from Hell: America in the Age of Genocide (2002), has condemned weaponized starvation. But when she gave a speech entitled “The Line Between Crisis and Catastrophe” at the Center for Strategic and International Studies in July, stopping starvation crimes didn’t make her list of three priorities for fighting the global food crisis—immediate humanitarian aid, investment in agriculture, and diplomatic efforts to increase aid budgets and reduce export restrictions.

Addressing the Security Council in May, US Secretary of State Antony Blinken teetered on the brink of reversing the US military’s long record of permitting certain acts of starvation. “The Russian Federation is not the only government or organization to exploit food insecurity for its own cynical ends,” he said, urging the Council to “consistently call out governments and armed groups” for “attacking the means of food production and distribution, blocking humanitarian aid from reaching those in need,” and “besieging civilian populations.” But both in that speech and since, he has been notably diffident about calling out starvation crimes except in cases where the US has already made its position clear, as in Syria, or where the culprits are both powerless and discredited, as in South Sudan.

The test case is Tigray. Following the humanitarian truce in March, WFP convoys began rolling up the steep roads to the region—still a woefully inadequate plan for feeding the nearly five million people estimated to need help, but a substantial improvement. Banking, telecommunications, fuel, and medicine remained blocked, and in June the region’s main hospital was forced to close for lack of supplies. After twenty months without salaries, nurses couldn’t feed their own children and were fainting from hunger on their shifts.

The TPLF and the Abiy government talked peace to their publics and, it appears, to one another. In an open letter to world leaders on August 23, the TPLF leader Debretsion Gebremichael claimed that at an unspecified date the two sides had reached an agreement to lift the blockade, but that the federal government had then backtracked. (The government has so far not commented on this allegation, but no international envoy has denied it.) Whatever the reason for the breakdown in talks, both sides readied for war. The Ethiopians mobilized new divisions to the borders with Tigray and dispatched forces to Eritrea to join up with the Eritrean army. The Tigrayans saw this buildup as the prelude to an attack from all sides. Debretsion concluded his letter with a warning: “Our choice is only whether we perish by starvation or whether we die fighting for our rights and our dignity.”

Fighting erupted the next day, with the Tigrayan troops gaining an early advantage. Each side blamed the other for firing the first shots. Blinken condemned both for breaking the “humanitarian truce,” which he said had “saved countless lives and enabled assistance to reach tens of thousands.” David Beasley, the head of the World Food Program, posted an enraged tweet accusing the TPLF of stealing fuel intended for his trucks; a TPLF spokesman responded that the army was reclaiming fuel it had loaned the UN some months before. The Ethiopian air force bombed the Tigrayan capital, Mekelle. For all these reasons, humanitarian operations stopped. One of the functions of a siege is that communities start to see their social fabrics unravel when they starve, and as the deprivation of Tigray deepened with no end in sight, discontent rumbled. Tigrayans asked why their secretive leadership had mobilized a huge army but had no evident plan to break the encirclement. In his open letter, Debretsion stated his preconditions for reopening peace talks, including the withdrawal of Eritrea and the restoration of Tigray’s pre-war boundaries. Numbers one and two were lifting the siege and granting unfettered humanitarian access. “The blockade is a war crime,” he wrote, and “the continued perpetration of a war crime is not a matter for negotiation under any circumstances.”

As my colleagues Bridget Conley, Catriona Murdoch, Wayne Jordash KC, and I have recently shown, lawyers, diplomats, and human rights advocates are fashioning legal tools to prohibit and punish starvation crimes. States could, for instance, adopt into their own laws a 2019 amendment to the Rome Statute of the International Criminal Court that prohibits starvation in non-international armed conflicts, and starvation could be included in the mandates of UN investigative bodies. Ultimately, the hope is to be able to prosecute an individual for the war crime of starvation. But the tools of international criminal law are only as strong as the moral outrage of those who choose to wield them. On the subject of Tigray, Guterres has failed to take a lead, and the Security Council has thus far remained intractable. In the wake of the renewed fighting, a meeting scheduled for this week will serve as a test of the Council members’ position of the legality of the blockade.

The US is in an awkward spot. When the fighting restarted, Blinken demanded that the two sides resume talks “without preconditions.” His outrage appears diluted as he pushes for aid convoys as a response to starvation crimes. Like previous US officials, he has chosen to shift the discussion from law to mercy, refusing to take the essential leap from appealing for food availability to demanding food entitlement. The result, intended or not, is that the US is defaulting to its longstanding doctrine that blockade is a tool to be regulated and not a crime in itself. “Starvation deaths,” Sen observed in the last sentence of Poverty and Famines, “can reflect legality with a vengeance.”