Ukraine Symposium – A Path Forward for Food Security in Armed Conflict

Climate change, the economic crisis following the Covid-19 pandemic, and armed conflicts throughout the world have aggravated the global food crisis (see e.g., here, p. 6-7 and here). Regarding specifically the latter, in 2018, the UN Security Council issued Resolution 2417, identifying a “vicious cycle between armed conflict and food insecurity.” Thus, there is no surprise – although still concern and regret – that the international armed conflict between Russia and Ukraine further threatens both local and global food security. Two main reasons have elevated the threat to exceptional levels.

Exceptional consequences

First, Russia and Ukraine are among the most important grain producers and exporters in the world (see e.g., here, at ¶¶ 2 and 20). On the one hand, 70% of Ukraine’s territory is allocated to agriculture and 17% of its active population works in the agricultural sector (2020 numbers available here, p. 6). On the other hand, many developing and least advanced countries, such as Egypt, Bangladesh, Lebanon, Yemen, Libya, and Pakistan, are dependent on Ukrainian and Russian food exports (see e.g., here, at ¶ 31).

Second, Russian military operations continue to impair the essential infrastructure necessary for production and distribution of food. This includes agricultural infrastructure, market infrastructure, and energy infrastructure.

As far as agricultural infrastructure is concerned, Russia reportedly targeted grain terminals, grain silos, farms, and storage warehouses and tanks (see e.g., here, p. 22-23 and here, p. 8). In addition, Russia mined or set crops on fire and stole grain from occupied territories, such as in Kherson (for legal analysis, see e.g., Schmitt and Anna Mykytenko and Maksym Vishchyk).

Concerning market infrastructure, Russia attacked grocery stores, grain-transporting railway facilities, and still operates a de facto blockade of certain Ukrainian ports in both the Black Sea and the Azov Sea. Only in mid-July 2022 could grain exports resume through three Ukrainian ports thanks to the Black Sea Initiative, renewed for another period of 120 days in November 2022 (for legal analysis of Russian blockades, see e.g., Fink, Lott, and Kraska, p. 553-55).

Finally, in relation to energy infrastructure, Russian armed forces obliterated the Ukrainian electricity network, most noticeably since mid-October 2022 (see here and here) (for legal analysis, see e.g., Schmitt and Schmitt).These attacks against the energy infrastructure not only deprive many Ukrainians of power indispensable to cooking meals, they also prevent the effective daily functioning of agricultural and market infrastructure. Indeed, their daily functions, for instance, for farms (at ¶ 57) and ports (p. 17), rely on energy sources like electricity.

The dramatic reality in Ukraine leads one to wonder whether international humanitarian law (IHL), and more specifically, the law of international armed conflict, provide sufficient protection to food security in armed conflict. This question is of particular importance because pressure on food security is expected to increase, notably due to climate and demographic changes. As defined during the World Food Summit in 1996, “food security [only] exists when people, at all times, have physical and economic access to sufficient safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life.” Thus, protection of food security implies protection of food resources, but also efforts to safeguard food and agricultural systems.

A Material or Ecological Approach

IHL offers two significant layers of protection to food security. One protects through general rules, another protects through specific rules. General rules (both customary and conventional in nature) do not have the specific purpose of protecting food security, but nonetheless partially achieve this goal. These rules follow a material or ecological approach toward food resources and objects contributing to food and agricultural systems (grain terminals, storage warehouses, crops, supermarkets, electricity network, etc.). These rules consider agricultural objects, food resources, as well as all food-related market and energy objects as: (i) any other civilian object which is part of the human environment (material approach) or, when relevant, as (ii) any other green object which is part of the natural environment (ecological approach). In other words, IHL general rules do not consider the sustenance value of food-related objects, including food resources, for the survival of humanity.

For instance, IHL basic principles regarding the conduct of hostilities, that are distinction, proportionality, and precautions, apply to all food-related objects and food resources. Indeed, these objects are often, by their nature, civilian objects in accordance with article 52(1) of Additional Protocol I (AP I), when they do not otherwise meet the definition of military objectives (art. 52(2) AP I). Food resources and food-related objects, as any civilian objects, thus enjoy an immunity against attacks except when they become military objectives. Likewise, when these resources or objects constitute collateral damage of an attack against a legitimate military objective, this damage must not be excessive in comparison with the expected definite military advantage (art. 51(5)(b) AP I).

Moreover, certain food resources and food-related objects such as crops and agricultural zones are part of the natural environment. As such, they are protected against widespread, long-term and severe damage (art. 55(1) AP I). This rule applies independently of any military necessity or of the possible proportionate character of the attack (p. 209-210). Although this rule appears to protect food security, the threshold for “widespread, long-term and severe” damage is set so high that damage to food-related green objects will hardly ever meet this threshold in practice.

Furthermore, food resources and food-related objects, like any other movable enemy assets, are protected against pillage (art. 28, Hague Regulations (HR) and art. 33, Geneva Convention IV (GC IV)) and seizure in the absence of any imperative necessity of war (art. 23(g) HR).

Finally, as civilian objects, these resources and objects enjoy a protection against the use of certain weapons, such as mines and incendiary weapons, according to Protocol II (art. 3, ¶7) and III (art. 2, ¶4) to the Convention on the Use of Certain Conventional Weapons (CCW).

A Narrow, Anthropocentric Approach

In addition to general rules, a few specific rules, of both a customary and a conventional nature, aim to protect food security. Yet, they operate only to the benefit of a given civilian population, i.e., the enemy population. In other words, these specific rules do care about the special value of food resources, rather than all food-related objects contributing to the food system, but only because these resources contribute to the immediate sustenance of a given population already in need or threatened by hunger. In that sense, they adopt a narrow, anthropocentric approach to protection of food resources. In addition, these specific rules have both a preventive perspective, namely to avoid people facing hunger, and a curative perspective, to help people that already face hunger (p. 1098).

For example, specific rules prohibit hunger as a method of warfare against the civilian population and protect objects indispensable to the survival of the civilian population (art. 54(1), (2) and (3) AP I). Thus, these rules have the limited goal to protect food resources for the benefit of the specific population whose survival is at stake. In this same idea, Professor Dannenbaum, who closely studied Article 54 AP I, insightfully writes: “Article 54(2) is unambiguously not concerned with the preservation of such objects in and of themselves. […] The special concern for, and protection of, the objects is derived instead from their essential value to specific populations (emphasis added)” (p. 55). Alongside Article 54 AP I, other specific rules deal with humanitarian assistance to civilians already in need, requiring involved States’ agreement to relief offers (art. 23 GC IV and art. 70 AP I) – unless a State’s refusal to agree is arbitrary (¶ 2805; but see Watts, p. 23-46).

The narrow anthropocentric approach of these specific rules clearly appears when they are discussed in the context of sieges and blockades. Despite several controversies relating to their application in this context, scholars do not debate that these rules are meant to specifically protect the part of the enemy population that is besieged or blockaded. They offer no protection to other civilian populations that may have been impacted by the siege or blockade, e.g., those depending on exports from the besieged or blockaded areas (see also Kraska, p. 556-557).

In summary, IHL is divided between, on the one hand, a material or ecological approach and, on the other hand, a narrow, anthropocentric approach to food resources and food-related objects. This double approach already provides considerable protection to food security. Therefore, the first challenge to protect food security in  armed conflict is one of compliance with IHL norms (on the issue of compliance, see e.g., Cathcart). The situation in Ukraine makes this clear: there is first and foremost an issue of compliance with IHL by Russian armed forces. Russia is a party to AP I, GC IV, Hague Convention IV and its Regulations, as well as Protocols II (but not the Ottawa Convention) and III to the CCW and, thus, must answer for the violations of its obligations. Yet, beyond compliance problems, should the IHL community of experts be fully satisfied with the protection provided to food security by this branch of international law?

Toward a General Anthropocentric Approach

As previously discussed, changes on earth and in human society have placed a heavy burden on food security. In 2015, the Food and Agriculture Organization of the United Nations noted that, “to satisfy the growing demand driven by population growth and dietary changes, food production will have to increase by 60 percent by 2050.” Despite improvements in our food system, how can humanity withstand the growing pressure on food security if belligerents undermine that system and destroy food resources? IHL could contribute to the collective effort to safeguard food security for all. One path forward is for IHL to endorse a supplementary approach, i.e., a large or general anthropocentric approach to food-related objects, including food resources. This approach calls for IHL to recognize the intrinsic sustenance value of food resources and of (at least some) food-related objects, for the sake of all humanity. To put it differently, IHL should not wait for a specific population to face or be threatened by hunger to give special consideration to food security.

The large or general anthropocentric approach does not require major amendments to IHL. Steps can already be achieved by interpreting and applying the existing framework. Many rules are flexible enough to include such an approach because they allow a context-based analysis or imply some kind of value judgment.

For example, when balancing collateral damage with the expected military advantage in the proportionality assessment, higher “weight” could be assigned to food resources and, at least, to certain food-related objects that contribute greatly to the food system. In the same vein, the examination of military necessity exceptions could be stricter when food security is at stake. Similarly, damage to food resources and food-related objects that are part of the environment should “weigh” in the appraisal of the three cumulative criteria referred to in article 55 AP I, especially the severity criterion.

When including such a general anthropocentric approach to food-related objects in IHL, it is essential to maintain an acceptable balance between the foundational principles of humanity and military necessity. It would be counterproductive to advocate humanity and ignore military necessities. Nonetheless, the balance between humanity and military necessity is itself ever evolving according to our common perception of human values (see Coco, de Hemptinne and Lander, p. 917).

Other options to incorporate a general anthropocentric approach would be to encourage belligerents to create protected zones in relation to food security (following, perhaps, the examples of non-defended localities and demilitarized zones respectively in art. 59 AP I and art. 60 AP I) or a list with identified food-related objects to be protected (for similar ideas in relation to the protection of the environment or the water, see Bothe et al., p. 577 and Geneva Water Hub, p. 6). Another possibility would be to encourage States to develop through their practice an obligation of due regard for food-related objects in armed conflicts (following the example of the due diligence principle in international environmental law – on the latter, see Henckarts and Contantin, p. 480-81).

Additionally, when applicable, international human rights law (in particular, the right to food) could help support and strengthen the suggested approach in IHL. For instance, the assessment of the arbitrary nature of State refusal to consent to relief action could take into account human rights obligations resulting from the right to food (see e.g., Sassòli, p. 580). Moreover, the right to food could be understood to require consideration of long-term effects on food security in the proportionality analysis (see e.g., Hutter, p. 740 and 746). Further, the extraterritorial obligation to respect this right (¶¶ 49-51) could prohibit State belligerents from declaring maritime blockades when the impact on civilian populations other than the blockaded population would infringe their “fundamental right […] to be free from hunger” (art. 11, International Covenant on Economic, Social and Cultural Rights) (for a similar idea on siege, see e.g., Durisch).

Concluding Thoughts

Although IHL protection for food security is important, the current legal framework does not appear fully adequate under its present interpretation to avoid weaponization of food in future conflicts with worsening effects for humanity. For the sake of the human species, State belligerents must fight hunger as much as they fight their adversary. We must adopt a general anthropocentric approach to IHL that is more responsive to the intrinsic sustenance value of food resources and food-related objects for all people.

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Pauline Lesaffre, Ph.D., is a FNRS postdoctoral researcher (chargée de recherches FNRS) in International Humanitarian Law and a lecturer in International Criminal Law at the University of Louvain, Belgium. FNRS refers to the (Belgian) Fund for Scientific Research. This blog post is expressing ideas developed in an article to be published in French in the Quebec Journal of International Law (RQDI). The author thanks Peter Haas, J.D., Philippe Jacques, Ph.D. candidate at the University of Louvain, Professor Sean Watts and the editing team of Articles of War for their helpful feedback on previous drafts of this post.

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