Dr Cristiano d’Orsi*
This study focuses on food security and starvation used as a weapon the ‘Tigray crisis’ that started on 4 November 2020, when the Ethiopian Prime Minister Abiy Ahmed sent troops into the northern region of Tigray, accusing its governing party, the Tigray People’s Liberation Front (TPLF), of launching surprise attacks against federal military bases in the area.
In April 2021, the United Nations (UN) Security Council (UNSC) issued a press statement in which its members noted with concern the humanitarian situation in Tigray, also under the aspect of food-security. On 8 July 2021, the UN Human Rights Council (HRC) adopted a resolution on the “Situation of human rights in the Tigray region of Ethiopia”, by a vote of 20 in favour, 14 against and 13 abstentions. In this resolution, inter alia, the HRC expressed its profound concern about the food crisis and the serious conditions of famine in the region (Preamble), calling for an advanced humanitarian response, including in the context of the food security situation (para 10). It is interesting to note that among the countries having voted against this resolution, apart from Eritrea (directly involved in the area and also accused of deliberately starving the people of Tigray), there were several other African countries, such as Burkina Faso, Cameroon, Cote d’Ivoire, Namibia, Somalia and Togo, while six other African states abstained and no African state voted in favour of this resolution.
African initiatives to mediate in the Tigray conflict
One month later, the African Union (AU), until now not very active in the crisis, appointed the former Nigerian President General Olusegun Obasanjo as its special envoy to lead the mediation process, in the framework of the AU’s drive to uphold peace, political dialogue, security and stability in the Horn of Africa. In September 2021, the Intergovernmental Authority on Development (IGAD), to which Ethiopia has belonged since January 1986 having been one of the founding members, released a press statement on food insecurity in the region where the situation of Tigray was not specifically mentioned. However, in the statement it was pointed out that Ethiopia was among the 10 worst global food crises in 2020 with 8.6 million people not having regular access to food. In addition, food security is one of the priorities of the Common Market for Eastern and Southern Africa (COMESA), which Ethiopia joined on 21 December 1981. In doing so, COMESA recalls the “Malabo Declaration on Transforming Africa’s Agriculture for Shared Prosperity and Improved Livelihoods through Harnessing Opportunities for Inclusive Growth and Sustainable Development” signed by the AU Heads of State in 2014, the AU’s “African Year of Agriculture and Food Security”. Among other aspects, through this document, the AU was committing to ending hunger in Africa by 2025 (para 3).
Humanitarian assistance from outside Africa
Against this backdrop, the European Union (EU), in early October 2021, organized a humanitarian air bridge to transport 10.6 tons of food for the civil population in Tigray. However, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA) in October 2021, food continues to be urgently needed in the region, with at least 5.2 million people in need of emergency food, and malnutrition among children under the age of five continues to be at alarming levels.
The right to food in Ethiopia
According to General Comment No. 12 to the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR: Ethiopia acceded on 11 June 1993), the right to adequate food (Article 11) “is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement” (para 6). However, paragraph 5 highlights already that millions of people are suffering from famine as the result of “the use of food as a political weapon”. Paragraph 19 clarifies that “[t]he prevention of access to humanitarian food aid in internal conflicts or other emergency situations” through the direct action of states or non-state actors (NSAs) is considered a violation of the right to adequate food. For many years the UN General Assembly (UNGA) generally dedicates at least one resolution to the right to food in which the legal and policy foundation of this right is confirmed. For example, the “right of everyone to have access to safe, sufficient and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger”, and the reaffirmation that “starvation of civilians as a method of combat is prohibited under international humanitarian law (IHL)” (UNGA, “The right to food”, para 2 and Preamble). Both the right to adequate food and the right to be free from hunger impose three obligations on states: the obligation to fulfil, to protect and respect (para 66). The use of starvation of civilians as a method of warfare was prohibited under IHL in the Additional Protocols of 1977 to the Geneva Conventions of 1949 (Article 54(1) and Article 14), a conduct that has been proscribed and criminalised under customary international law (CIL) as well (Rule 53).
Regionally, the African Charter on Human and Peoples’ Rights (Banjul Charter: ratified by Ethiopia on 15 June 1998) does not explicitly recognise the right to food. However, the progressive jurisprudence of the African Commission on Human and Peoples’ Rights (ACHPR) has made the incorporation of the right to fod possible. In its decision in 2001 Social and Economic Rights Action Centre (SERAC) & another v Nigeria, the ACHPR stated that the right to food was an implied right in the Banjul Charter (para 64). As such, in 2017, the ACHPR urged African states to adopt laws and regulations to guarantee the “right of everyone” to be free from hunger (para 1(a)).
The right to food is not openly recognised in the Constitution of Ethiopia, however, “[a]ll international agreements ratified by Ethiopia are an integral part of the law of the land”’ (Article 9(4): “Supremacy of the Constitution”). Moreover, fundamental rights provided for in the Constitution have to be “[i]nterpreted in a manner conforming to the principles of [the] international instruments adopted by Ethiopia” (Article 13(2): “Scope of Application and Interpretations”). For that reason, where the interpretation of domestic law is involved, international treaties assist as authoritative guidelines. Whether the right to food is justiciable in Ethiopia or not remains to be assessed and this because of various factors. The function of courts as custodians of human rights has often been shifted to other organs, for example, the House of Federation which is a political body, and the Council of Constitutional Inquiry (Adem K. Akebe, Mizan Law Review, 2011, 65-69). Furthermore, no Ethiopian court case has yet alleged the violation of the right to food (Samrawit G. Damtew, African Human Rights Law Journal, 2019, 233).
The danger of starvation in Ethiopia
On the other hand, however, Article 270 of the 2004 Ethiopian Penal Code concerns “war crimes against the civilian population”. Paragraph b) specifically forbids “wilful reduction to starvation [of the civilian population] while paragraph i) prohibits “the confiscation, destruction, removal, rendering useless or appropriation of property such as foodstuffs, agricultural areas for the production of food stuffs, crops, livestock, drinking water installations and supplies and irrigation works, health centres, schools”. Additionally, Article 273 prohibits pillage, piracy and looting.
Starvation used as a weapon is not even new in the region, given that in 1983-1985, when in Tigray, the TPLF fought a classic guerrilla insurgency that counter-insurgent forces turned into all-out counter-population combat, with the government aiming at the annihilation of Tigray. Grain stores were burned, and markets were ceaselessly bombarded. As farmers lost their means of employment, harvesting of crops totally ceased and the food market was in a huge state of emergency (Theodore M. Vestal, Africa Today, 1985, 7-28).
The conflict in Tigray was directly linked to the counter-insurgency line of attack that headed to an economic war in Ethiopia (Kristin A. Urbach, Interdisciplinary Journal of Human Rights, 2006, 34). The means by which the Ethiopian government brought the famine to its climax in Tigray in 1984 are classic examples of starvation crimes. However, according to Marcus, “even if a government knows that its policies will create famine among Tigrayans, for example, unless it specifically intends to exterminate the Tigrayans in whole or in part, its actions will not meet the standard for genocide”(David Marcus, The American Journal of International Law, 2003, 258 and 264). Against this backdrop, in the Special Prosecutor v. Colonel Mengistu Halemariam et al. (1995) concerning the prosecution and trial of Colonel Mengistu and former members of the Derg for allegedly committing crimes against humanity and war crimes during the former regime (1974-1991), the Special Prosecutor of Ethiopia affirmed: “[No] party has the power to call for national reconciliation and thereby grant amnesty or pardon in relation to war crimes […]. This right resides in the victims”. This concept has been further reiterated in the same document: “It is […], a well-established custom and belief that war crimes […] are not subject to amnesty and aren’t barred by limitation” (Girmachew A. Aneme, International Journal of Ethiopian Studies, 2009, 1-53).
Starvation as a weapon: challenges and suggestions
Against this backdrop, as mentioned above and highlighted also by the UN Special Rapporteur on the Right to Food, IHL bans the use of starvation as a weapon of war, through the destruction of crops and other objects that are indispensable for the survival of civilians (para 65). The intentional use of starvation as a weapon is forbidden in all types of conflicts, however it has only been classified as a war crime in international armed conflicts under article 8(2)(b)(xxv) of the Rome Statute. The lack of a specific provision criminalising starvation in non-international armed conflicts (NIACs), revealing a clear gap in the available International Criminal Court (ICC) law, threatens the protection of civilians and prevents international criminal prosecutions in many stances. The absence of such a provision is noticeable, as a comprehensive body of practice supports the customary rule against the starvation of civilians during war notwithstanding of the legal categorisation of the conflict (Federica D’Alessandra and Matthew Gillett, Journal of International Criminal Law, 2019, 816). However, Ethiopia is not party yet of the thirty-three African countries that are members of the Rome Statute.
In Resolution 2417 (2018), the UNSC condemns the use of starvation of civilians as a technique of warfare (para 5) and urges states to conduct full and effective investigations within their jurisdiction into violations relating to the use of starvation of civilians as a method of warfare (para 10). Resolution 2573 reiterates the condemnation of the use of starvation of civilians as a method of warfare (para 4). According to Zappala, Resolution 2417 affirms that starvation amounts to a war crime without any distinction between international and non-international armed conflicts. In this way, Resolution 2417 encourages states to adopt domestic legislation to criminalize the crime of starvation irrespective of the nature of the conflict and even if there is no conflict (Salvatore Zappala, Journal of International Criminal Law, 2019, 903-904). On the other hand, Jordash and others note that an international criminal prosecution for the crime of starvation is not the panacea for what is happening all around the world, including Tigray. They suggest that starvation should be more prevented than prosecuted by African institutions, strengthening the prohibition and prevention of the crime but at the same time, they also think that it is important to ensure effective penal sanctions and proportionate stigma for the underlining misconduct when African countries face it (Wayne Jordash QC, Catriona Murdoch and Joe Holmes, Journal of International Criminal Law, 2019, 879).
Conclusion: inducted starvation must be stopped
Tigray needs an immediate and long-term ceasefire and an end to the blockade so that full humanitarian access, including food, can get in. Without this, the famine will grow. Without public accountability at the highest levels, the famine will only deteriorate. On the other hand, there is an urgent need for a comprehensive, independent and high-level investigation of international crimes committed by all belligerents in Tigray. Such an investigation should include starvation crimes. One of the big challenges to overcome for an effective investigation on what is happening in Tigray is that the Government of Ethiopia considers the Tigray crisis as internal affairs, in this position backed by several influential countries like Russia whose delegate at the UNSC confirmed this stance on early October 2021.
When in February 2004, the former UN Special Rapporteur on the right to food visited Ethiopia he had to note that, with no particular conflict going on in that period, Tigray was one of the poorest and most food-insecure regions of the country (para 14). This means that poverty and famine are endemic in that region and, in such a destitute panorama, the present unrest makes the situation even more dramatic with the civilian population that, as usual, pay the highest price of a conflict planned and decided by only few politicians and military.
* Dr Cristiano d’Orsi is a Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Ph.D. in International Law from Graduate Institute of International and Development Studies (Geneva). Additionally, Cristiano has done post-doctoral studies at the University of Michigan Law School (Grotius Scholar) and at the Centre for Human Rights, Faculty of Law, University of Pretoria. His research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.
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