Professional Documents
Culture Documents
2
POLICY BRIEF
JUNE 2019
This paper was produced by World Peace 1. This memorandum addresses the issue of starvation crimes com-
Foundation affiliated researcher Tong mitted during the civil war in South Sudan (2013-18) including
Deng Anei, Alex de Waal, Bridget Conley, the goals and methods of the perpetrators, the outcomes for
with special thanks to World Peace Foun- the victims, and the possibilities for legal redress. It includes an
dation research assistant, Scott Hoag. overview of the use of starvation during the war and three case
studies. Fuller legal analysis of starvation issues is addressed else-
International advisory firm, Global Rights where.1
Compliance, specialises in services asso-
ciated with bringing accountability for
2. South Sudan is, in peacetime, food secure but has high levels of
violations of international humanitarian
law and international human rights law.
poverty and poor health infrastructure. The 1983-2005 civil war
witnessed numerous incidents in which all parties used starvation
The World Peace Foundation, an op- as a method of warfare. These occurred in the context of sieges,
erating foundation affiliated solely with and also included scorched earth, forced displacement and large-
The Fletcher School, provides intellectual scale looting (especially of cattle), and the strategic manipulation
leadership on issues of peace, justice and of humanitarian operations in order to selectively attract relief
security. supplies to feed soldiers and allied civilian populations while de-
nying civilians under the control of the other side. These tactics
Additional information and resources are led to recurrent famines.
available at:
Starvationaccountability.org 3. The recent war reprised this experience. Both government and
opposition forces used starvation tactics, causing hunger, dis-
ease, social breakdown and heightened mortality. Humanitarian
aid was also blocked, stolen and manipulated, and aid workers
were attacked. While only a few locations descended into ‘famine’
conditions according to the Integrated Food Security Phase Clas-
sification (IPC) scale, very large populations suffered ‘emergency’
and ‘crisis’ levels of food insecurity. An estimated 383,000 people
died between early 2014 and mid-2018.
4. Unity State was the worst hit by starvation due to massive and
repeated depredations by both parties. Another case was Wau/
Baggari in Western Bahr al Ghazal State, where people were
forced into an inhospitable location, leading to extremely severe
localized famine conditions. A third case is Yei in Central Equatoria
State: a breadbasket reduced to ‘emergency’ sta- stricken civilian communities, and used starvation
tus by government attacks. to force garrison towns to submit, supply its own
forces, and punish communities whose leaders
5. The conduct of hostilities in South Sudan includes had allied with the government. Some of the most
actions that undoubtedly constitute a grave vio- serious depredations occurred during internecine
lations of international laws across IHL and ICL in- warfare among South Sudanese armed factions,
cluding starvation crimes. As such they should be whose commanders and members appeared to
considered for prosecution in the envisaged hy- have no greater regard for the rights or welfare of
brid court. The memo concludes with reflections civilians than militiamen and soldiers from north-
on possible avenues for this. ern Sudan.
Background 10. South Sudan became the focus of one of the larg-
est and longest-running relief programmes. All
6. South Sudan possesses some of the most agricul- parties manipulated humanitarian operations in
turally productive land anywhere in the world and order to selectively attract relief supplies to feed
in times of peace and stability, communities rarely soldiers and allied civilian populations while de-
experience hunger. The history of scarcity, hunger nying civilians under the control of the other side.
and disease is closely related to the depredations Relief was routinely blocked or stolen and relief
inflicted on the people by raiding and warfare. workers were harassed and sometimes killed.
Some of these attacks were targeted and consti-
7. The 1983-2005 civil war witnessed numerous in- tuted violations of the codes of conduct and hu-
cidents in which the Government of Sudan, allied manitarian principles that were developed during
militia and the Sudan People’s Liberation Army the conflict by the United Nations Operation Life-
(SPLA) (and its various factions) used starvation line Sudan, or were clear violations of IHL.
as a method of war. These included violations
perpetrated during sieges of towns, scorched 11. These tactics led to recurrent famines, notably in
earth tactics inflicted on rural areas, the block- 1987-89 (Northern Bahr al Ghazal and Unity, also
ade and disruption of trade, forced displacement Torit), 1993-94 (Jonglei and Unity), 1998 (Bahr al
and large-scale looting (especially of cattle). Com- Ghazal), and 1999-2000 (Unity) and localized food
batants not only destroyed food, farms, livestock crises elsewhere. The people also suffered some of
herds and livelihoods, but also sometimes went the worst health outcomes anywhere in the world,
so far as to prevent desperate people from for- including epidemics of diseases such as visceral
aging for wild foods or finding casual labour. The leishmaniasis. The famines caused major social
combination of destruction and deprivation led to breakdown.
some of the highest mortality rates ever recorded
in modern times. 12. Following a general ceasefire in 2003 and the
Comprehensive Peace Agreement in 2005, South
8. The Sudanese Government’s aims were to de- Sudan enjoyed approximately a decade of relative
prive the SPLA of a civilian base, punish commu- tranquility along with a transition from emergen-
nities that supported the rebellion, incentivize cy relief to economic development. South Sudan
pro-government militia, and drive people off their rapidly returned to food security and progress was
lands. The government’s modus operandi was to made in developing health services.
treat counter-insurgency operations as an ‘ethics
free zone’ in which army and militia commanders 13. A significant exception to this was a localized in-
would not be held accountable for their actions, surgency in Jonglei. In repressing a rebellion by an
and in which they were encouraged to pursue lo- ethnic Murle militia, government forces destroyed
cal vendettas, land-grabbing, cattle theft and loot- food supplies and health facilities, causing a hu-
ing, and other profiteering, including from exploit- manitarian crisis in 2012-13.
ing cheap or coerced labour.
27. By the end of 2015, nearly 560,000 people (90 per- 31. Three rounds of violence in June-July 2016 led
cent of the state’s population) had been forcibly to additional forced displacement. Following an
displaced. Many of those sought refuge in the UN attack by the SPLA-IO on 23 June, ethnically-tar-
Protection of Civilians Site at Bentiu (where condi- geted sweeps of neighbourhoods by the SPLA’s
tions were particularly deplorable in the rainy sea- Fifth Division forced 80,000 people to flee over the
son due to flooding), across the border in Sudan, following days. On 28 June, following another at-
or in other towns. Others hid in the swamps and tack, jointly by SPLA-IO and the Fertit militia, SPLA
many cases of drowning were reported as people forces rampaged and displaced a further 120,000.
sought to collect water lilies for food, or to hide A third round of violence in July displaced more.
from soldiers. (There was a controversy among aid Some of those affected sought refuge in the UN
officials whether deaths from drowning should be Protection of Civilians Site and adjacent areas;
counted among ‘famine’ deaths or not, resolved others in church compounds; while many fled the
in favour of them being excluded as the immedi- town for the relative safety of the Greater Baggari
ate cause was neither hunger nor hunger-related area.
disease.) The southern counties of the state were
persistently in IPC level 4 (‘emergency’) through- 32. Between January and September 2017, the SPLA
out this period, and Leer and Mayendit descended forces enforced a siege on Greater Baggari, af-
into level 5 (‘famine’) in 2017. fecting both local people and (especially) the dis-
placed. An estimated 21,000-38,000 people were
28. The SPLA repeatedly blocked the delivery of hu- affected. Throughout this area, SPLA forces de-
manitarian supplies to the area. One government stroyed food stocks and crops, including uproot-
commissioner is on record saying that because the ing root crops such as cassava which are cultivated
humanitarians provided supplies to the SPLA-IO, in part because they keep for long periods without
they needed to be removed from the area. being harvested, and are therefore a useful reserve
crop for times of hunger. This continued into 2018
Wau/Baggari, Western Bahr al Ghazal with systematic looting and burning of villages
and food stores.
29. Wau and its environs have had a long history of
36. Yei County in Central Equatoria State was a bread- 39. The cultivated areas and the size of harvest fell
basket for South Sudan, blessed by fertile soil, precipitously: in 2016 Yei produced food equiva-
plentiful rainfall, productive farms, a variety of lent to 184% of local requirements but in subse-
crops, and access to markets. Along with most quent years it suffered a deficit of 40-46%. Human-
parts of Equatoria it was spared the ravages of the itarian assessments showed Yei rapidly reduced to
first phases of the civil war. However, in 2015-16, crisis and emergency status. Extreme deprivation
Equatorian groups began military mobilization to and hunger-related deaths were reported among
join the SPLA-IO and in July 2016, Yei was abrupt- groups fleeing to Uganda. While the levels of mal-
ly thrust into the front line of the war due to the nutrition and excess mortality were considerably
fact that the leader of the SPLA-IO, Riek Machar, lower than in some other parts of the country (in-
fled through the area to seek exile in the Demo- cluding for example Greater Baggari and Leer and
cratic Republic of Congo, pursued by government Mayendit counties), this was a particularly rapid
forces. Subsequently, Yei County has been the site descent into food insecurity.
of ongoing insurgency with SPLA-IO-affiliated
guerrillas controlling the countryside and govern- 40. The government restricted humanitarian access.
ment forces controlling the town and the main In addition to general insecurity that affected aid
ACCOUNTABILITY FOR STARVATION CRIMES: SOUTH SUDAN 6
deliveries, the government blocked relief supplies dum, we draw attention to the principal formula-
to areas in which people were believed to be sym- tion of the prohibition on crimes of starvation, as
pathetic to SPLA-IO. contained in Article 8(2)(b)(xxv) of the Rome Stat-
ute (‘Article 8 starvation’):
41. Although Yei County did not descend into famine
conditions to the same degree as elsewhere, many Intentionally using starvation of civilians
individuals died from lack of food, water and es- as a method of warfare by depriving them
sential medical care during as a result of military of objects indispensable to their survival,
actions, and the acts of deprivation by military including wilfully impeding relief supplies
commanders responsible are clearly evident. as provided for under the Geneva Conven-
tions.
Options for Redress
46. The relevant considerations are the following:
42. The hunger, destitution and deaths in South Su-
dan since December 2013 are overwhelmingly • The crime of starvation does not require that
the product of starvation crimes committed by the victims should die from starvation, only
the belligerent parties, especially the govern- that they should intentionally be deprived of
ment. They are not the product of environmental objects indispensable to survival (OIS). There
or climatic factors, or economic crisis (though the are numerous instances (some of them out-
latter played a role). Nor are they a failure of aid lined above) of the destruction, removal, ren-
donors. The outcomes in terms of mass suffering dering useless or otherwise depriving civilians
and death were wholly predictable, especially so of OIS in South Sudan.
because of the experiences of war-famine in re-
cent decades. • The term ‘method of warfare’ should be con-
strued as akin to a contextual element that not
43. Options for redress include: prosecution; transi- only links the criminal acts to the conduct of
tional justice mechanisms; and utilizing avenues hostilities, but becomes part of the conduct
for investigation leading to policy options such as of hostilities. There are strong indications that
sanctions. Sustained engagement with the rele- the SPLA are using the destruction of OIS as
vant South Sudanese actors, notably civil society a specific way of conducting hostilities, sug-
groups, is required to determine the appropriate gestive of the intentional use of starvation of
mechanisms and processes. civilians.
• The Article 8(2)(b)(xxv) crime of starvation
44. On prosecution, this memo has identified potential may occur when a perpetrator acts with the
starvation crimes that should be prosecuted: knowledge that his conduct will as a virtual
certainty cause starvation, regardless of the
• The deliberate and systematic destruction military purpose of the action. Circumstantial
of objects indispensable to the survival of evidence will likely be critical in establishing
a population, in Greater Baggari and in Yei the material elements of the crime. An exam-
County; and other prohibited acts includ- ple may be, if it is clear that a military com-
ing the forced removal of people into an mander or senior official is aware that there is
area that cannot sustain human life; a dire humanitarian situation and escalating
food insecurity, and is aware that continuing
• Attacks on humanitarian aid workers, who to destroy OIS, prevent humanitarian relief or
are a protected category of persons. forcibly displace thousands of civilians, would
as a virtual certainty result in civilians starving.
45. Detailed analysis of the applicable law and po- This may lead to an irresistible inference that
tential avenues for prosecution are contained in starvation was intended or would result in the
a separate memorandum entitled ‘The Crime of ordinary course of events.
Starvation and Methods of Prosecution and Ac-
countability’. For the purposes of this memoran- • Perpetrators often harbor other intents and
Relevant Law
• SERAC v. Nigeria case 155/1996 (2001),
• Decision of the African HR Commission, Communication No. 296/2005, Centre on Housing Rights and Evic-
tions v. Sudan, adopted during the 45th Ordinary Session (held 13-27 May 2009)
• M. Sassòli, A. Bouvier and A. Quintin, How Does Law Protect in War? Second edition, Vol. I (ICRC pub, Geneva,
2005), p. 280.
The Kingdom of the Netherlands Ministry of Foreign Affairs funds the “Accountability for Mass Starvation: Testing the Limits of the Law”
Project implemented by Global Rights Compliance and The World Peace Foundation. The views expressed in this paper are those of the
author(s) and may not coincide with the official position of The Kingdom of the Netherlands.