Starvation and food insecurity in light of the Covid-19 pandemic

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Dr Matthew Gillett

International Bar Association’s Special Rapporteur on the Crime of Starvation

matthew.gillett@gmail.com

Introduction: the emergence of the coronavirus crisis

As the world entered a new decade in January 2020, the international community faced a panoply of threats including war, terrorism, corruption and natural disasters. Looming over all of these was the growing spectre of irreversible anthropogenic environmental harm. At the same time, unbeknown to many, the seeds of a new threat were already taking root and spreading. Within weeks, the novel coronavirus (and the disease it causes, Covid-19), emerged as a global health crisis, linked to millions of cases and hundreds of thousands of deaths.

Along with its direct impact on many of those infected with the virus, Covid-19 has profoundly impacted society in general. Governments have significantly restricted human movement and activity in almost every country. Unemployment rates around the world have skyrocketed. The looming economic crisis threatens lasting damage to the livelihoods and mental and physical well-being of billions of people around the world.

With countries at various points of their Covid-19 exposure, a measure of informed perspective is possible. While the pandemic continues to escalate in some countries, others appear to have passed through the peak of new infections and are seeing fewer and fewer new cases every day. Although further outbreaks are possible, projections of total deaths are now being made through various models with increasing statistical confidence.[1] Against this backdrop, secondary threats can be assessed and factored into governmental responses to the Covid-19 crisis. The risk of starvation is one of them.

Covid-19 may increase food insecurity and starvation among vulnerable populations

The United Nations Food and Agriculture Organization (FAO), headquartered in Italy, has warned that ‘we risk a looming food crisis unless measures are taken fast to protect the most vulnerable, keep global food supply chains alive and mitigate the pandemic’s impacts across the food system’.[2] It has estimated that, depending on the extent of the economic contractions, there will be between 14 and 80 million more people experiencing hunger in the 101 net food-importing countries.[3] The pandemic may also aggravate the risks to populations already experiencing hunger, which, according to the FAO number some 820 million people around the world, and ‘135 million people across 55 countries and territories were estimated to be experiencing crisis levels of acute food insecurity (situations in which a sudden crisis or a shock leads to food insecurity levels so extreme that people’s lives or livelihoods are in immediate danger)’.

While there are reports of heightened food shortages in wealthy countries, this secondary effect of Covid-19 is likely to disproportionately impact poor and conflict-affected states.[4] Unfortunately conflicts have not abated despite the United Nations Secretary General’s call for a worldwide cease fire, and the threat of Covid-19 exacerbating the plight of vulnerable populations in these States remains elevated.[5]

For example, in Yemen, which has been recognised as ‘the poorest country in the Arab world’, conflict-induced food insecurity has been a threat for several years.[6] The extent of this threat is exacerbated by the Covid-19 crisis for two primary reasons.[7] First, food supplies to the state, which were already intermittent and unreliable, will likely be impacted by the global strains on food production and supply. Second, large parts of Yemen’s population rely on outside organisations for humanitarian relief supplies, and those outside organisations face constraints linked to Covid-19 in accessing the affected population. The Saudi-backed interim government and the Houthi rebels have both imposed flight bans to the country’s airports, and relief agencies themselves are being forced to limit the activities of their staff on the ground in Yemen.[8]

Clusters of Covid-19 infections have been detected in Yemen.[9] Although the numbers are relatively limited (484 cases with 112 deaths), they are increasing.[10] The interim government has declared Aden, the interim seat of government, an infested city due to a jump in new cases over the past few days.[11] Even more worryingly, the number of cases may be vastly under-reported. The World Health Organization (WHO) has said that the transmission of the virus in Yemen is ‘full-blown’, ‘with the disease spreading undetected among a population with some of the lowest levels of immunity to disease compared with other states’. Moreover, the Aden-based, Saudi-backed government has claimed that the Houthi rebels are covering up the real numbers of cases and deaths.

Other conflict-affected states face similar predicaments. In Afghanistan, Covid-19 has added itself to the long list of threats plaguing the war-torn country. Over 100 corona-linked deaths have been reported and this number appears to be increasing.[12] Of particular concern, critically-needed doctors are falling victim to Covid-19.[13] Like in Yemen, there are similar indications of under-reporting of Covid-19 infections.[14] As for Libya, very few cases of corona infections have been reported, but the virus threatens to overwhelm an already stretched medical system if it escalates.[15]

In Syria, barely any outbreak of Covid-19 has been reported to date, with recorded figures amounting to 141 cases and six deaths.[16] But this may change and may also be underestimated due to lack of testing. Moreover, it is already being reported that the ‘Covid-19 pandemic has exacerbated the already dire circumstances caused by the deterioration of the economic situation in Syria, increasing the humanitarian needs, including making vital goods such as food, water and hygiene items unaffordable for many’.[17] These conditions are leading to a heightened risk of starvation.[18]

The threat of food shortages is not only felt by populations living in areas subject to conflict, but also by the vast numbers of refugees and displaced persons who have fled to escape war zones. Conditions in camps are often over-crowded, with a lack of nutrition sources, clean water and sanitation. In such circumstances, Covid-19 may expand rapidly, and may deter relief workers from attempting to intervene to protect the displaced persons. The closure of borders means that persons fleeing war have little choice other than to enter the camps and expose themselves to the various risks therein.[19]

Authorities must not unduly restrict humanitarian access to vulnerable populations

Given the multifarious threat of increased starvation and malnourishment due to Covid-19, it is important that potential victims are not cut off from their life-line supplies. In this respect, governments and other non-state parties to armed conflict have several obligations under international law to allow humanitarian supplies to be delivered to vulnerable populations.[20]

Under international human rights law, there is a right to food, recognised in Article 25 of the Universal Declaration of Human Rights and Article 11 of the International Covenant on Economic Social and Cultural Rights (ICESCR), as well as the right to health as laid out in Article 12 of the ICESCR.

Under international humanitarian law, Article 54 of AP I, applicable in international armed conflicts, and Article 14 of AP II, applicable in non-international armed conflicts, both address starvation directly, setting out a clear prohibition against intentionally starving civilians in war. Additionally, parties to a ‘conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control’, as set out in Rule 55 of the International Committee of the Red Cross’ (ICRC’s) study on customary IHL and as touched upon in common Article 3 of the four Geneva Conventions and Article 18 of Additional Protocol II.

Under international criminal law, ‘intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’ is a war crime during an international armed conflict under Article 8(2)(b)(xxv) of the Rome Statute. A corresponding article for non-international armed conflicts was added to the Rome Statute in 2019 through the addition of Article 8(2)(e)(xix) (this amendment is already operative, at least in the case of Security Council referrals). Importantly, these provisions reflect prohibitions that form part of customary international law and are thus binding on parties to conflicts whether or not they have signed up to the Rome Statute of the International Criminal Court.[21]

Several other aspects of international criminal law are engaged by the Covid-19 pandemic and interconnect with the risk of exacerbating starvation. Fabricio Guariglia has noted that it is ‘not outside the realm of possibilities that the international criminal justice system be asked to hold to account those who use the Covid-19 crisis as an excuse to commit or perpetuate crimes against humanity or war crimes.’[22] In this respect, he recalls that intentional attacks on humanitarian personnel may be prosecuted under the ICC Statute, Article (8)(2)(b)(iii) and 8(2)(e)(iii) and that those who ‘deliberately fail to take all necessary steps to contain the propagation of a potentially deadly virus, in full awareness of the consequences’ or intentionally fail ‘to provide adequate health information, support and facilities to a targeted group suffering a life-threatening epidemic’ may potentially be held to account, including through various forms of responsibility under Articles 25 and 28 of the Rome Statute. In relation to increased food insecurity, criminal accountability potentially encompasses both acts and omissions that are intended to result in starvation.[23]

Against this factual and legal backdrop, governments should avoid exacerbating food shortages. Indeed, a renowned group of United Nations Special Rapporteurs on human rights and related matters issued a statement in light of the emerging Covid-19 crisis, arguing that ‘any restrictions imposed to combat the pandemic should be “narrowly tailored”’.[24] Importantly, the experts highlighted that measures ostensibly aimed at stemming the spread of Covid-19 ‘should not function as a cover for repressive action (against opponents)’.[25] International lawyers working to confront starvation have already warned that selective and targeted imposition of economic policies could amount to the war crime of starvation.[26]

Alongside the selective application of restrictive measures, there is a concomitant risk of information warfare being used by the parties to a given conflict. The intentional exaggeration, minimisation, or other dissemination of misinformation for tactical purposes should be avoided. This is particularly important where relief agencies are reliant on such information to assess the risks of accessing vulnerable populations in order to provide humanitarian supplies.[27]

United Nations Security Council Resolution 2417 of 2018 remains apposite to governmental responses to the current crisis, despite the fact that it pre-dates the emergence of Covid-19.[28] In this resolution, the Security Council condemned the starving of civilians as a method of warfare — as well as the unlawful denial of humanitarian access to civilian populations. Given the heightened risk of obstacles to essential supplies due to Covid-19’s impact, states and parties to conflicts should bear in mind the Security Council’s emphasis on ‘the importance of safe and unimpeded access of humanitarian personnel to civilians in armed conflicts’. They should take heed that the ‘the Council has adopted and can consider to adopt sanction measures, where appropriate and in line with existing practice, that can be applied to individuals or entities obstructing the delivery of humanitarian assistance, or access to, or distribution of, humanitarian assistance’. They should also note the UNSC’s urging to ‘conduct, in an independent manner, full, prompt, impartial and effective investigations within their jurisdiction into violations of international humanitarian law related to the use of starvation of civilians as a method of warfare, including the unlawful denial of humanitarian assistance to the civilian population in armed conflict’. In conjunction with international criminal responsibility, these measures provide an indication of the severity of the threat of starvation and the need to prevent the Covid-19 crisis exacerbating this threat. 

Outside of the armed conflict paradigm, questions arise as to the existence and ambit of obligations on governments to receive humanitarian assistance.  In relation to governmental obligations, the International Law Commission’s Draft articles on the protection of persons in the event of disasters (with commentaries), address calamitous natural and anthropogenic events falling outside of the coverage of international humanitarian law.[29] While ‘reaffirming the primary role of the state affected by a disaster in providing disaster relief assistance’, the articles set out a broad web of obligations incumbent on states facing such circumstances, and provide a powerful basis to urge states to avoid unjustified restrictions on humanitarian access.

Article 6 requires that any ‘response to disasters shall take place in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable’. Article 7 sets out the duty to cooperate with other states, the United Nations and other assisting actors. Article 8 elaborates that cooperation in response to disasters ‘includes humanitarian assistance, coordination of international relief actions and communications, and making available relief personnel, equipment and goods, and scientific, medical and technical resources’. Notably, Article 11 provides that ‘to the extent that a disaster manifestly exceeds its national response capacity, the affected state has the duty to seek assistance from, as appropriate, other states, the United Nations, and other potential assisting actors’. The International Law Commission highlights that obligation ensues from the fact that ‘human rights are directly implicated in the context of a disaster, including the right to life, the right to adequate food, the right to health and medical services, the right to safe drinking water, the right to adequate housing, clothing and sanitation and the right to be free from discrimination’.

Whereas Article 13 recognises that cooperation must also be undertaken in accordance with the requirement of consent of the affected state to external assistance, it adds that the state may not arbitrarily withhold consent to external assistance. At the same time, Article 14 recognises that ‘the affected state may place appropriate conditions on the provision of external assistance, particularly with respect to the identified needs of persons affected by a disaster and the quality of the assistance’.

However, in as much as these draft articles provide valuable guidance to states facing disasters, it is potentially unclear whether they would apply at all to the current global crisis arising from Covid-19. Article 3 defines a ‘disaster’ as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’. The International Law Commission’s commentary makes no mention of viral pandemics, and the events it does refer to (earthquakes, tsunamis, drought, sea-level rise, floods, and landslides, whether natural, anthropogenic, or both) are, arguably, of a qualitatively different nature. While the definition is sufficiently broad to encompass pandemics, it behoves the International Law Commission or the General Assembly to explicitly confirm that such events were intended to fall within its ambit.[30]     

Questions also arise as to the extent of the coverage of international criminal law, which has no provision explicitly prohibiting starvation outside of armed conflict. In this respect, although neither starvation nor the unjustified denial of humanitarian relief supplies to affected populations constitutes a crime per se outside of the context of armed conflict, there are various ways in which starvation during peacetime could potentially be prosecuted. For example, they may amount to established crimes against humanity such as other inhumane acts, torture, murder, extermination or persecution, as well as various underlying acts of genocide, including the intentional infliction of conditions of life calculated to bring about a protected group’s physical destruction in whole or in part.[31] The possibility of criminal proceedings for the intentional starvation of civilians can serve a deterrent and/or expressivist function to remind any authority tempted to use the cover of the Covid-19 pandemic to deprive vulnerable populations of essential supplies of the criminal nature of such acts.   

Conclusion

Several months into the Covid-19 crisis, it has provoked a worldwide response of unprecedented ubiquity. The pandemic threatens populations globally and threatens to exacerbate existing global threats. Even as the pandemic appears to be abating in severity, new outbreaks remain a serious possibility and the direct and indirect effects of the pandemic will be felt for years rather than months. The threats of food insecurity and starvation have been elevated by the Covid-19 pandemic, particularly in areas of armed conflict. Parties to armed conflicts must be held to the standards set out in United Nations Security Council Resolution 2417, and must not use the pandemic pretextually to target opposing populations. However, the risk of starvation also arises outside of armed conflict, and here significant legal questions arise concerning the nature and scope of governmental obligations to allow food supplies to reach vulnerable populations during the Covid-19 crisis, and the applicability of international criminal law to the intentional aggravation of food insecurity and starvation.  

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