Governing Conflicts between International Humanitarian Law and International Criminal Law: The Crime of Starvation in Non-International Armed Conflicts

Abstract

The criminalisation of starvation in non-international armed conflicts in the Rome Statute in December 2019 finally addressed the plight of civilian populations at the brink of starvation. All parties to the conflict – state and non-state alike – shall be held accountable inter alia for arbitrarily denying offers of international humanitarian relief. It would complement fighting parties’ existing positive and negative obligations under international humanitarian law vis-à-vis the civilian population under their control, namely, respectively, the obligation to provide in the means necessary to their survival and the prohibition of the use of starvation against them as a method of warfare. Despite their noble humanitarian objectives, this normative criminal justice agenda establishing a symmetry of criminalised conduct across international and non-international armed conflicts, however, has overlooked the fundamental question whether or not non-state armed group actually have the right to consent to offers of international humanitarian relief – the so-called right to strategic consent – in the first place before criminalising its abusive exercise that amounts to the violation of the prohibition of starvation. This article examines these doctrinal obstacles and the impossibility for the crime of starvation, pursuant to the law on the application of conflicting norms, to trump the law of international humanitarian relief governing the right to strategic consent and offers an alternative pathway to move ahead with this normative agenda in the long-term.

Keywords: Conflict of Norms, Humanitarian Access, Law of International Humanitarian Relief, Right of Control, Right to Strategic Consent