Dannenbaum: Siege Starvation: A War Crime of Societal Torture

Tom Dannenbaum (Tufts Univ. - The Fletcher School) has posted Siege Starvation: A War Crime of Societal Torture (Chicago Journal of International Law, forthcoming). Here's the abstract:

A recent amendment to the Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified. A common way of thinking about the criminal wrong is as a form of killing or harming civilians. Although its differentiating particularities matter, the basic wrongfulness of the crime inheres, on this view, in it being an attack on those who ought not be attacked. For some, this supports a broad interpretation of the starvation ban. However, for others, the graduality of starvation preserves the continuous possibility of the avoidance or minimization of civilian death or harm in a way that direct kinetic attacks do not. In combination with the method’s purported military utility, this distinctive incrementalism has underpinned arguments for the permissibility of certain forms of siege and other deprivation and a narrow interpretation of the starvation crime.

Drawing on the moral philosophy of torture, this Article offers a different normative theory of the crime. Starvation, like torture, is peculiarly wrongful in its distortion of victims’ biological imperatives against their capacities to formulate and act on higher-order desires, political commitments, and even love. This process does not merely raise the cost of fulfilling those commitments. Instead, starvation tears gradually at the very capacity of those affected to prioritize their most fundamental commitments, regardless of whether they would choose to do so under the conditions necessary to evaluate matters with a “contemplative attitude.” Rather than palliating, the slowness of starvation methods is at the crux of this torturous wrong. Recognizing this redefines the meaning and place of the crime in the framework of international criminal law.