The Commission is probably right not to complicate this point. It is hard to imagine how the removal of essential items for illegal purposes (looting) could circumvent the hunger ban if it were otherwise in place. In addition, an argument analogous to that advanced above in the context of encirclement may also be valid here – the removal of objects is not a collateral effect, but the predicate purpose necessary for the completion of looting. i) a gap in the available law of the International Criminal Court (ICC), namely the absence of a specific provision criminalizing starvation in non-international armed conflicts (NACI) under the ICC Statute (Rome Statute). This loophole threatens the protection of civilians and prevents international prosecution in almost all current conflicts where hunger is used; Assuming that deprivation of encirclement is indeed to be understood as being governed by the same framework as other forms of deprivation, the first question of law in such a context would be whether the supply of essential goods is deliberately blocked. If this is the case, as seems to have been the case with the siege of Mariupol, the next question is whether the aim is to deny food (even to combatants) in a context where this refusal will also affect civilians. If this is the case, the operation would be prohibited. However, in the event of a siege of a military base or resistance without a civilian presence, the prohibition would not apply. It seems unlikely that the latter is an adequate characterization of the encirclement of the Ukrainian armed forces within the Azovstal steel plant, with thousands of civilians seeking refuge there at the beginning of the war and still there up to a thousand reports, according to earlier this week. Of course, the methods of starvation are not exhausted by the attack, destruction, removal or uselessness of indispensable objects. The most important method, which does not seem to be on this list, is encirclement starvation, in which civilians are cut off from external supplies of these objects. In Ukraine, this method was most important during the siege of Mariupol, suspended since the beginning of March. On Thursday, Russia claimed to have captured much of the city.
However, the Azovstal steel plant remained a resistance fighter and remained under siege. Throughout the encirclement, humanitarian actors reported insurmountable obstacles to access, and there were repeated allegations that Russian forces blocked the delivery of aid and bombed promised humanitarian evacuation corridors. In mid-March, the ICRC described “an extreme or total shortage of basic necessities”. In late March, US Deputy Secretary of State Wendy Sherman told the UN Security Council that the city`s residents were starving. In a report published on 13 April, the OSCE Moscow Mechanism expert mission referred to reports that between 150,000 and 300,000 civilians were “trapped” in the city with “very little food and water” (p.32). “Hunger” is a term used in relief operations, early warning, political analysis and international law. Under international law, it is both death by starvation or starvation and a more general deprivation or inadequate supply of a vital commodity or something necessary for life. Although the term “hunger” in English implies death, under international humanitarian law (“IHL”) and international criminal law (“ICL”), it also includes a number of diseases and illnesses resulting from the lack of food, medicine and other essential goods. In other regions, terms such as “malnutrition”, “famine” and “food insecurity” are often mentioned. The Commission takes up this normative change and attaches great importance to criminal justice in the report, concluding in a number of situations that there is “sufficient evidence” to hold persons criminally responsible for the crime of starvation as a method of war as well as other relevant crimes (paras.
92, 128-31, 144-147), including on the basis of indiscriminate denial of humanitarian assistance (124, 131, 147). This position appears to be influenced in part by the inclusion by the ICC and the Malabo Protocol of “wilful obstruction of the delivery of assistance” in the ICC and Malabo Protocol definitions of crime.