Weaponizing Food

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| Mar 28, 2022

Targeting Food

The conflict in Ukraine is threatening the world’s food system. For instance, Ukraine and Russia supply around 30% of global wheat and barley exports. And over 40% of Ukrainian wheat export goes to Africa, where food shortages are endemic. In a March 25 update, the UN Food and Agriculture Organization explained the risk.

In Ukraine, the escalation of the conflict raises concerns on whether crops will be harvested and products exported. The war has already led to port closures, the suspension of oilseed crushing operations and the introduction of export licensing requirements for some products. All of these could take a toll on the country’s exports of grains and vegetable oils in the months ahead.

[T]here are also concerns that the conflict may result in damages to inland transport infrastructure and seaports, as well as storage and processing infrastructure. This is all the more so given the limited capacity of alternatives, such as rail transport for seaports or smaller processing facilities for modern oilseeds crushing facilities, to compensate for their lack of operation.

Thus, as the UN World Food Program (WFP) Director has warned, “The bullets and bombs in Ukraine could take the global hunger crisis to levels beyond anything we’ve seen before.”

More immediately, the Ukrainian people are facing dire food shortages. The World Food Program (WFP) is racing against time to get food stocks into Kyiv, Kharkiv, and Dnipro in the face of what a senior WFP spokesperson labeled “medieval tactics of besiegement.” Its Emergency Food Coordinator for Ukraine has observed that it is probably too late for Mariupol. Starvation is on the horizon for at least parts of Ukraine should the conflict continue for much longer.

And the conflict’s economic impact on Ukraine’s agricultural exports will be devastating. In 2021, they comprised 41% of Ukraine’s exports and topped 27 billion dollars. Agriculture’s share in Ukraine’s Gross Domestic Product exceeded 10%, the largest of any sector in the economy.

Targeting Food?

The mere fact of war is therefore threatening hunger and economic crises in Ukraine and abroad. But making matters worse, Russia is intentionally attacking agricultural infrastructure, according to the European Union’s Agriculture Commissioner. In formal remarks on March 23, he echoed the allegation of a Ukrainian deputy minister who accused Russia of using “Ukrainian soil…as a weapon of war.” In the subsequent press conference, the Commissioner concluded that the only “interpretation [of Russia’s actions] is that they want to create hunger and use this as a method of aggression.” He ominously pointed to the Soviet Union’s use of starvation as a tactic from 1932 to 1933 against the people of Ukraine and Kazakhstan; millions died.

His colleague, the European Commission for Trade, likewise accused Russia of “deliberately targeting and destroying Ukraine’s food stocks and food storage.” He went on to warn, “Russia’s relentless aggression not only means more food shortages for suffering Ukrainians; it also means supply disruptions that affect the whole world, particularly lower-income countries that now have to pay more for their basic food imports.”

This post asks whether the Russian tactic of targeting or otherwise disrupting Ukraine’s food production and distribution system is lawful under international humanitarian law (IHL). The answer is more complex than it might seem at first glance. But as will be explained, it is difficult to imagine how the Russian actions could be lawful given IHL’s prohibitions on attacking civilian objects and conducting military operations designed to starve the civilian population.

Food as a Military Objective?

Distinction is, in the words of the International Court of Justice, a “cardinal principle” of IHL (Nuclear Weapons, ¶ 78). A customary rule of law (see here and here) codified in Article 48 of Additional Protocol I to the 1949 Geneva Conventions, it requires parties to a conflict to distinguish between military objectives and combatants on one hand and civilian objects and civilians on the other. Distinction is operationalized by, inter alia, rules forbidding attacks on civilians or civilian objects (Additional Protocol I, Articles 51 and 52, respectively, and customary law).

It would seem axiomatic that food and its associated infrastructure, including agricultural products and infrastructure, qualify as civilian objects protected from attack. In 1971, the Department of Defense General Counsel made precisely this point in testimony before Congress: “[A]n attack by any means against crops intended solely for consumption by noncombatants not contributing to the enemy’s war effort would be unlawful for such would not be an attack upon a legitimate military objective” (DoD Law of War Manual, fn. 711).

Yet, there are circumstances in which it is permissible to attack food and associated infrastructure, a point Russia may raise to justify its actions. To refute any such justification, it is necessary to understand when that is so.

Article 52(1) of Additional Protocol I, a treaty to which both Ukraine and Russia are Party, defines civilian objects as those objects that “are not military objectives.” Military objectives are defined in Article 52(2): “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

Applying this universally accepted definition, food and associated infrastructure may qualify as a military objective if used, at least in part, for military purposes (a so-called “dual-use target”). For instance, a rail line that transports military equipment and agricultural products qualifies as a military objective based on its military usage.

Even food itself may qualify on this basis. This possibility is acknowledged in Article 54(2) of Additional Protocol I, which prohibits attacks on objects indispensable to the civilian population (see discussion below). It contains an exception for indispensable objects, such as “foodstuffs,” used “as sustenance solely for the members of [the enemy’s] armed forces” [art. 54(3)(b)]. In such a case, the food has acquired status as a military objective and is targetable, subject to the other IHL rules governing attacks.

Similarly, an agricultural area may qualify as a military objective by location. As an example, agricultural land adjacent to a road that is intentionally flooded to force the enemy vehicles to remain on the road, thereby rendering them susceptible to attack, is a military objective. Food and associated infrastructure also may qualify by purpose (future use). For instance, a bridge over which agricultural or food products are being transported, but not military equipment or personnel, is nevertheless a military objective by “purpose” if the enemy will inevitably use it later as a military “line of communication.”

It is even possible that food and associated infrastructure could amount to a military objective by nature. Examples would include rations specially designed for the armed forces, such as the American “meals ready-to-eat” (MRE), and purpose-built facilities in which rations are transported or stored, like military transport vehicles or warehouses on a military base.

Some of these situations may apply in Ukraine, particularly for attacks against dual-use military objectives like lines of communications. Yet, it cannot be the case that qualification as a military objective would justify more than a fraction of the Russian operations generating outrage. After all, it would be difficult for lawful attacks on food-related targets to cause the scale of hunger about which the European officials are warning. And even with respect to attacks on food-related military objectives, it must be remembered that the rule of proportionality (arts. 51 and 57, and customary law) and the requirement to take precautions in attack (art. 57 and customary law) apply if they would foreseeably result in civilian physical suffering or death due to denial of food; in some cases, the operation of those rules alone could bar attack.

War-sustaining Objects?

A controversial issue in targeting law surrounds so-called “war-sustaining” military objectives. Universal consensus exists that “war-fighting” (e.g., military equipment) or “war-supporting” objects are military objectives. Food products for, and food infrastructure serving, the enemy forces illustrate the latter.

However, the United States has taken the position that war-sustaining objects also qualify as military objectives; these are objects that “indirectly but effectively supports the enemy’s overall war effort” (AMW Manual, Rule 24). The DoD Law of War Manual explains, “It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient.” (§ 5.6.6.2). The Manual includes war-sustaining industries amongst such targets (§ 5.6.8.5). Examples of other target sets said to have qualified as military objectives on this basis include ISIS oil export from territory it controlled (see discussion by Watkins) and narcotics production by the Taliban in Afghanistan (see discussion by Schmitt).

Ukraine’s agricultural sector would arguably qualify as war-sustaining given the extent to which the Ukrainian economy relies upon agricultural exports—27 billion dollars annually, 10% of GDP, 41% of exports. Clearly, the agricultural sector indirectly provides a significant portion of the financing for Ukraine’s armed forces. Therefore, it will be difficult to argue that the sector does not qualify as war-sustaining if the war continues for any appreciable time. This is so despite the DoD General Counsel’s slight tempering of the U.S. approach in 2016 (see discussion here).

Most States and scholars in the field believe the war-sustaining approach misinterprets the concept of military objective (but see Goodman). For instance, a majority of the international experts who prepared the Harvard Manual on the International Law Applicable to Air and Missile Warfare, Tallinn Manual on the International Law Applicable to Cyber Warfare, and Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations rejected the approach. In addition, the International Law Association Study Group on the Conduct of Hostilities in the 21st Century concluded that “application of the definition … would violate the principle of distinction.”

I participated in all four groups, agreed with their conclusions, and have long opposed the notion of war-sustaining military objectives. In my estimation, Professor Yoram Dinstein’s assertion in his classic The Conduct of Hostilities Under the Law of International Armed Conflict that the approach “goes too far” is accurate. As he noted, “For an object to qualify as a military objective, there must exist a proximate nexus to ‘war-fighting’. Crops and other agricultural produce as such do not qualify as military objectives.” Any assertion that Russian targeting of the agricultural sector might be justified because it qualifies as a military objective would, in my estimation, be legally unsupportable.

Objects Indispensable to the Survival of the Civilian Population

In addition to the prohibition on attacking civilian objects, Article 54 of Additional Protocol I, which binds Russia, bears on the accusations made by the European Union officials and others. It provides special protection to objects that the civilian population relies upon to survive, especially food and water. The prohibitions are set forth in the article’s first two paragraphs.

1. Starvation of civilians as a method of warfare is prohibited.

2. 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.

It is essential to understand that the prohibition on starvation applies only when employed as a “method of warfare.” The ICRC Commentary to the article explains, “To use it as a method of warfare would be to provoke it deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies” (¶ 2089). It is the use of starvation as a “weapon to annihilate or weaken the population” (¶ 2090) or, as noted in the text, to force the civilian population to move elsewhere. In the naval warfare context, the prohibition must be assessed in light of the law of blockade, but, as Martin Fink has noted in this symposium, Russia has not legally established a blockade of Ukrainian ports. Therefore, even in the maritime environment, the prohibition applies as discussed below

As the ICRC correctly asserts in its Customary International Humanitarian Law study, the prohibition on starvation as a method of warfare against civilians is customary in character (Rule 53), a conclusion the Eritrea-Ethiopia Claims Commission also arrived at in its Aerial Bombardment partial award (¶ 105). The Department of Defense agrees:

Starvation specifically directed against the enemy civilian population, however, is prohibited. For example, it would be prohibited to destroy food or water supplies for the purpose of denying sustenance to the civilian population (DoD Law of War Manual, § 5.20.1; see also Army and Marine Corps Commander’s Handbook on the Law of Land Warfare, ¶¶  2-130, 2-131).

The second paragraph of the article is a rule of application that makes the general principle prohibiting starvation operative for Parties to the instrument (Commentary, ¶ 2091). Four points distinguish Article 54(2) from the IHL rule prohibiting attacks on civilian objects. Two render the rule more protective than that which prohibits attacking civilian objects.

First, the operation in question need not qualify as an “attack” under IHL (Additional Protocol I, Article 49), as is the case with the prohibition on attacking civilian objects previously discussed. In its Commentary to the article, the ICRC pointed out that “the verbs ‘attack’, ‘destroy’, ‘remove’ and ‘render useless’ are used in order to cover all possibilities, including pollution, by chemical or other agents, of water reservoirs, or destruction of crops by defoliants” (¶ 2101). For instance, intentionally contaminating farmland would qualify.

Second, even when indispensable objects like food qualify as military objectives (for instance, because the enemy relies upon them), they may only be attacked if 1) used for sustenance only by the enemy or 2) if not used as sustenance, used in “direct support” of enemy “military action.” Concerning the former [Article 54(3)(a)], starvation of enemy forces has long been a lawful method of warfare (see, e.g., 1863 Lieber Code, art. 17). The article now limits that tactic to situations in which the items are exclusively sustenance for the enemy.

The latter exception is found in Article 54(3)(b). It applies when the enemy is not using the indispensable object for sustenance. An example would be the use of irrigation ditches or agricultural fields as cover for ambushes. In such a case, enemy forces could destroy the ditches or fields. But the article walks that exception back somewhat by noting that “in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.”

But in two regards, the rule is more limited than the prohibition on attacking civilian objects. The first is the mens rea requirement. By it, the rule only applies when its specific purpose is to deny the indispensable objects because of their sustenance value to the civilian population or the adversary State (denial that would prevent that State from feeding the civilian population). Jelena Pejic has offered the example of “deployment of landmines in agricultural areas or in irrigation works with the specific purpose of precluding their use for the sustenance of the civilian population would likewise constitute a violation.” But consider the situation mentioned earlier in which farmland is flooded to canalize enemy forces into a kill zone. The rule would not bar the operation because the objective is not denial of sustenance to the enemy forces or civilian population. Similarly, the rule would not prohibit attacking a rail line that carried both military supplies and food for the civilian population to deprive the enemy of those supplies.

The second narrowing is inapplicable in the Ukraine case. Found in Article 54(5), it permits “scorched earth” tactics by a Party when required by “imperative military necessity” in the face of an invasion of its national territory. This provision would apply to Ukrainian actions to deprive Russian forces of essential supplies from the land but not to Russian actions against indispensable objects.

It must be noted that neither Ukraine nor Russia has submitted declarations or reservations to Article 54. Equally important, Article 54(4) prohibits reprisals against objects indispensable to the civilian population’s survival. And prohibitions against both starvation and operations against indispensable objects appear in the 2001 Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation (§§ 7, 22). Russia’s military manual likewise states, “The prohibited methods of warfare include … using starvation of civilians to achieve military objectives” [§ 5(r)]. Thus, Russia would have no basis for claiming that Article 54 is inapplicable to its operations in Ukraine.

While there is no debate over starvation per se, the customary status of Article 54(2) is uncertain. Rule 54 of the ICRC’s Customary International Humanitarian Law study provides, “Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited.” But France and the United Kingdom stated upon ratification that the rule applies only to attacks with a specific purpose of denying sustenance to the civilian population. This interpretation limits Article 54(3)(b)’s exclusion to situations where the enemy is not using the object for sustenance, but the adversary nevertheless attacks it to deny sustenance to the civilian population. In other Article 54(3)(b) cases, the rule of proportionality and requirement to take precautions in attack would govern the attack.

For its part, the United States would allow operations against food and associated infrastructure that qualify as military objectives subject to application of the rule of proportionality and the requirement to take precautions in attack (DoD Law of War Manual, § 5.20.2; see also Army and Marine Corps Commander’s Handbook on the Law of Land Warfare, ¶¶ 2-122, 2-133). As a non-Party to Additional Protocol I, it cautions,

Given the intricacy of this provision of AP I, it would be difficult to conclude that all of its particulars reflect customary international law. Nonetheless, the United States has supported the underlying principle that starvation of civilians may not be used as a method of warfare ….

I agree with Professor Sean Watts’s observation in this symposium that the U.S. position “reduces the [starvation] rule’s humanitarian effect, perhaps to the vanishing point.” The differences and debates are important for Articles of War readers to grasp, but are not relevant in the Ukraine conflict given the applicability of Additional Protocol I.

Conclusion

Many other IHL rules could apply to operations affecting the availability of food. Under the Fourth Geneva Convention, for instance, occupiers are responsible for the care of civilians in occupied territory (see, e.g., Geneva Convention IV, art. 55). Or operations that cause damage to agricultural areas may run afoul of the environmental protection (see, e.g., Additional Protocol I, arts. 35 and 55). And numerous IHL rules provide special protection to humanitarian assistance (see Watts and Pejic).

But assuming the allegations made against Russia about the weaponization of access by Ukraine’s civilian population to food are accurate (and there is no reason to believe they are not), Russia is violating both the prohibition on attacking civilian objects and the prohibition on using starvation as a method of warfare; it will be responsible under international law for its “internationally wrongful acts” in this regard (Articles on State Responsibility, art. 2).

Finally, Russian military personnel and officials would also do well to remember that starvation is a war crime. With respect to civilians in territory under Russian occupation, “wilful killing” and “inhumane treatment” are grave breaches of the Geneva Convention IV (art. 147). More broadly, starvation as a method of warfare, wherever it occurs, is punishable by the International Criminal Court (Rome Statute, art. 8(b)(xxv)), which enjoys jurisdiction that might even reach actions and decisions taken beyond Ukraine’s borders (see EJIL:Talk!).

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Professor Emeritus at the United States Naval War College.

 

 

Photo credit: Raimond Spekking via Wikimedia Commons

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