RICRSEPTEMBRE IRRCSEPTEMBER 1999 VOL.

81 N°835

The denial of humanitarian

assistance as a crime
under international law
by
CHRISTA ROTTENSTEINER

A massacre is not necessarily committed only with knives.

A refugeefromKosovo

HE images we see every day on our television screens are,sadly,

T all too familiar: civilians fleeing an armed conflict, struggling

to survive under difficult circumstances.They lack food, water,
appropriate clothing and shelter, and have no access to med-
ical assistance.These images may come from the Balkans, the Great Lakes
region in Central Africa, or any other part of the world, but the main prob-
lem facing humanitarian organizations in every conflict situation stays the
same — that is, how to reach people in need. Fighting often makes it
impossible to access an area, sometimes the terrain or meteorological con-
ditions do not allow the passage of relief goods, and in other cases the
whereabouts of victims are unknown. Frequently, difficulties in gaining
access to those requiring assistance are not, however, a matter of unfortu-

CHRISTA ROTTENSTEINER holds Master's degrees from the University of Vienna

(Austria) and the University of Essex (UK). She drafted this article while working at
the ICRC.

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THE DENIAL OF HUMANITARIAN ASSISTANCE

nate circumstances but are man-made and intentional. Looting of relief

supplies, attacks on convoys, or refusal to authorize access can make it diffi-
cult for aid to reach its intended beneficiaries.The consequences can be
disastrous, as events in Biafra, Somalia, Bosnia or southern Sudan — to
name but a few tragic examples — have shown.
The withholding of food and other vital goods is not a new
phenomenon. Throughout history, starvation has been used as a method of
warfare. The foremost goal of sieges and blockades was not to inflict suffer-
ing on the civilian population, which was seen as an inevitable "by-prod-
uct", but to bring about the surrender of the enemy army. In today's wars,
however, humanitarian assistance is increasingly denied as part of a deliber-
ate policy to target civilians, in particular during internal armed conflicts.
The often-discussed change in the nature of warfare might be one reason
for this development. The other reason might be the change in the nature
of humanitarian operations. In the 1990s, there has been an increasing ten-
dency to use them as a substitute for effective political or military action.
Besides, the number of relief operations has risen steadily. This has led to a
situation where humanitarian assistance is often used as a bargaining chip
in political dealings and is therefore regularly impeded. Because the inter-
national media is giving more attention to the matter, the withholding of
aid has also become more obvious than before.
This article seeks to clarify under which circumstances the
denial of humanitarian assistance can constitute a crime under interna-
tional law. It examines three core crimes of international law: war crimes,
crimes against humanity and genocide. The paper does not suggest creat-
ing a new category of crimes, but rather examines the question as to
whether the denial of humanitarian assistance fits into the definition of
existing crimes. The purpose of covering all three crimes is to gain an
overview of the possibilities for prosecuting someone for the denial of
humanitarian aid. While the article is limited to situations of armed con-
flict, the consideration of crimes against humanity and genocide can open
a discussion on the withholding of goods essential for survival in times of
internal tension and disturbances not covered by international humanitar-
ian law, or even in peacetime.
The study of this topic is of particular interest as these crimes
have regained relevance with the work of the ad hoc Tribunals for the
Former Yugoslavia (ICTY) and for Rwanda (ICTR), and, most impor-

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tantly, with the recent adoption of the Statute for an International

Criminal Court (ICC).The future ICC will not only permit that perpe-
trators of the most serious violations of international law be brought to
justice, but it will also contribute to the prevention of such violations.

Humanitarian assistance in international law

Before analysing whether the denial of humanitarian assis-
tance can be considered a crime under international law, we must first
define the type of assistance under discussion and give a brief overview of
die rules governing it.1
For the purposes of this article, humanitarian assistance is
defined as including all emergency action to ensure the survival of those
direcdy affected by armed conflict of an international or internal character.
It encompasses material aid — food, water, clothing, medicines, fuel, shel-
ter, bedding, hospital equipment, etc. — and the services of trained person-
nel. In order for assistance to be humanitarian in nature, its sole purpose
must be to prevent and alleviate human suffering.2 The beneficiaries of
humanitarian aid are needy civilians, including internees, and prisoners of
war. Assistance given during internal disturbances and tension (however
difficult the distinction between internal disturbances and internal armed
conflict might be at times) and natural disasters will be excluded.
Furthermore, only aid given by outside humanitarian organizations,
whether international, governmental or non-governmental, will be con-
sidered.
The principle of subsidiarity dictates that the primary respon-
sibility for meeting the needs of the civilian population in an armed con-
flict rests with the warring parties that are in effective control of the
territory on which mat population lives. Only if those parties are unable to
meet their obligations should outside relief action be taken. In an interna-
tional armed conflict, the Third and Fourth Geneva Conventions regulate
the provision of food and other goods for prisoners of war, and persons in

l See, e.g., Denise Plattner, "Assistance to the (eds), Law in Humanitarian Crises, Volume II,
civilian population: The development and pre- Brussels/Luxembourg, 1995.
sent state of international humanitarian law", 2 See also the statement in the Nicaragua
IRRC, No. 288, May-June 1992, pp. 249-263; Judgment of the International Court of Justice:
UNESCO (eds), Le droit a I'assistance humani- Military and Paramilitary Activities In and Against
take, Actes du Colloque international organise Nicaragua, I.C.J. Reports 1986, paras 97 and
par UNESCO, Paris, 1995; European Commission 242-243.

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THE DENIAL OF HUMANITARIAN ASSISTANCE

occupied territories and internees, respectively.3 The 1977 Additional

Protocol II contains further rules on relief action for the civilian popula-
tion.4 In non-international armed conflicts, Article 3 common to the four
Geneva Conventions and 1977 Additional Protocol II provide for human-
itarian assistance for civilians, including those whose liberty has been
restricted.5
Humanitarian organizations have the right to offer humani-
tarian aid to States without this being regarded as interference in the inter-
nal matters of a State.6 They further have the right to furnish humanitarian
assistance provided that they obtain the consent of the government con-
cerned.7 Consent must be given when the necessary requirements are ful-
filled, i.e., that the international relief operation is of an exclusively
humanitarian and impartial nature and conducted without any adverse
distinction vis-a-vis those in need.8 In practice, humanitarian organizations
also need the agreement of a non-State party to a conflict which is in de
facto control of the territory where the relief operation is to be carried out.
The ICRC Commentaries on the Protocols state that the fact that con-
sent is required does not mean that the decision on a relief operation is left
to the discretion of the parties: "If the survival of the population is threat-
ened and a humanitarian organization fulfilling the required conditions of
impartiality and non-discrimination is able to remedy this situation, relief
actions must take place (...) [A] refusal would be equivalent to a violation
of the rule prohibiting the use of starvation as a method of combat (...)".9
Once a relief operation is accepted in principle, the authorities are under
an obligation to cooperate, for example by facilitating the rapid transit of

3 Geneva Convention relative to the Armed Conflicts (Protocol II), Arts 5.i(b) and (c)
Treatment of Prisoners of War (Third Geneva and 18.2.
Convention), Arts 26-32 and 72-75; Geneva 6 Art. 3 common to the four Geneva
Convention relative to the Protection of Civilian Conventions; Protocol I, Art. 70.1. Activities of the
Persons in Time of War (Fourth Geneva ICRC are also mentioned in Arts 9/9/9/10 of the
Convention), Arts 23,55-63 and 108-111. Conventions.
4 Protocol Additional to the Geneva 7 First Geneva Convention, Art. 27; Protocol I,
Conventions of 12 August 1949, and relating to Arts 64,70.1 and 81.1; Protocol 11, Art. 18.2.
the Protection of Victims of International Armed 8 Protocol I, Art. 70.1; Protocol II, Art. 18.2.
Conflicts (Protocol I), Arts 69-71 and 81 (on activi- 9 Y. Sandoz, C. Swinarski, B. Zimmermann
tiesofthe ICRC). (eds), Commentary on the Additional Protocols
5 Protocol Additional to the Geneva of 8 June 1977 to the Geneva Conventions of
Conventions of 12 August 1949, and relating to 12 August 1949, ICRC, Geneva, 1987. On Protocol
the Protection of Victims of Non-International II, Art. 18.2, see para. 4885, p. 1479, and on
Protocol I, Art. 70.1, see para. 2808, p. 820.

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relief consignments and by ensuring the safety of convoys.10 Parties to the

conflict, however, have a right to supervise the operation and impose cer-
tain restrictions, such as the arrangement of transits in accordance with a
precise timetable and itinerary, and the search of convoys.11

Aspects of the denial of humanitarian assistance

The denial of humanitarian assistance will be defined in this
paper as follows: a situation where, as a result of the intentional behaviour
of certain persons, humanitarian assistance does not reach its intended ben-
eficiaries. In order to shed light on how such a denial can occur in prac-
tice, we shall look at some of the main factors identified in different cases.
The ways of impeding aid are obviously innumerable; therefore the list of
factors and examples given here does not claim to be exhaustive.
First of all, various actors may be responsible for hampering
assistance, such as agents of a government, representatives of non-govern-
mental groups, and bandits. Sometimes, parts of the civilian population
who are not the intended recipients are implicated in the denial of aid to
those who need it. In the event of general anarchy, as was the case in
Somalia, the affiliation of some actors and the purpose of their looting
might be difficult to ascertain.
There are different means of preventing aid from reaching
potential beneficiaries. A government may, for example, stop aid agencies
from entering the country at all and can thus ensure that no assistance is
given. Once humanitarian organizations are working in the country, a gov-
ernment may use — or rather abuse — its above-mentioned right to
supervise relief consignments by, for example, searching convoys for an
excessive length of time. Both governmental and non-governmental forces
may confiscate relief or refuse permission to access a certain region. They
can also prevent aid from reaching the victims by putting up roadblocks,
through the closure or constant shelling of airports, through a sea blockade
or by besieging a town. Sometimes, unacceptable conditions are imposed,
for example the payment of taxes for the delivery of assistance or the
demand that the same amount of aid be given to all sides in the conflict,
without regard to actual needs.

10 For international armed conflicts, see u First Geneva Convention, Art. 27; Fourth
Fourth Geneva Convention, Arts 59-61 and 108; Geneva Convention, Arts 59-63,108 and 109;
Protocol I, Art. 70.2 and 70.3. Protocol I, Arts 64 and 70.3.

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A very effective means of impeding the work of humanitar-

ian organizations is simply to state that their security cannot be guaran-
teed. Any actor — State agents, rebel forces, other non-governmental
groups, bandits, or civilians — could obstruct the delivery of assistance by
intimidating aid workers or drivers, or by attacking relief convoys, ships or
aircraft, or aid personnel. In some cases, snipers have attacked people on
their way to collect humanitarian assistance. On many occasions, the fight-
ing itself, whether between State forces, governmental and non-govern-
mental forces, or non-governmental groups fighting each other, has
prevented aid from reaching the victims. Mine-laying often makes routes
impassable for vehicles, thereby cutting off potential beneficiaries. In the
case of camps or prisons, the persons in control of such places could divert
relief goods, refuse access to aid agencies or simply deny the fact diat these
detention centres even exist.
The denial of humanitarian assistance may have various aims.
In a conflict where civilians are targeted, the displacement of part of the
population or their starvation is such an aim; this could, for example, fur-
ther a policy of "ethnic cleansing". The aim of sieges or blockades is to
bring hostilities to a quicker end with less casualties for the besieging forces
by obliging the besieged forces to surrender. Furthermore, belligerents may
confiscate aid in order to fortify their troops, instead of "feeding useless
mouths". Also, bandits or criminal gangs may loot humanitarian assistance
for the sole purpose of making profits. However, drawing the line between
criminal gangs and forces directly involved in the conflict is not always
easy.
The consequence of denying humanitarian assistance is a
deterioration in the living conditions of the civilians affected. This may in
turn lead to malnutrition, the spread of diseases, or even death. Lack of
resources may also aggravate inter-community tension, especially between
displaced persons and the resident population.
Those who prevent assistance from reaching people in need
will not normally disclose their real intentions. The reasons given may be
of a legalistic nature, for example the claim that such assistance constitutes
interference in the conflict, or insistence on the right of supervision. The
urgency of the need for outside aid may not be acknowledged. Reprisals,
although generally considered illegal when committed against civilians,
might also serve as a justification. Military considerations are often put for-

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ward to justify starvation, on the ground that only such rigorous measures
can bring the hostilities to a speedy close. The civilian nature of a popula-
tion may also be questioned, with the suggestion that its members belong
in reality to rebel forces.

The denial of humanitarian assistance as a crime under

international law
This chapter will examine the extent to which denial of
humanitarian assistance amounts to a crime under international law. The
first step will be to analyse the elements that make an offence under
domestic law a crime of international concern. The next step will be to
consider the offences that constitute war crimes, crimes against humanity
and genocide.

l.War crimes
A war crime is a serious and criminally punishable violation
of international humanitarian law12 committed by any physical person, no
matter whether military or civilian.13 In order for an act to become a war
crime, the existence of an armed conflict is essential.The Appeal Chamber
of the ICTY established in the Tadic case that an armed conflict exists
"whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organized armed
groups or between such groups within a State".14 In order for a crime to
fall within international jurisdiction, it is not sufficient that it be perpe-
trated in a State where an armed conflict takes place, but a nexus must be
established between the offence and the armed conflict. This, however,
does not mean that the crime has to be committed at the exact time and
place where active hostilities are under way. "The only question, to be

12 See the provisions on "grave breaches" of Tribunal, Art. 5; Statutes of the ICTY, Arts 6 and
the Geneva Conventions, Arts 50/51/130/147. 7, and the ICTR, Arts 5 and 6; and Statute of the
Also: Statutes of the Nuremberg Tribunal, Art. ICC, Art. 25.
6(b); Statutes of the two ad hoc Tribunals: ICTY, 14 ICTY, Prosecutor v. Dusko Tadic a.k.a.
Arts 2 and 3, and ICTR, Art. 4; and ICC Statute, "Duie": Decision on the Defence Motion for
Art. 8. Interlocutory Appeal on Jurisdiction, 2 October
13 See Geneva Conventions, Arts 1995, Case No. IT-94-1-AR72, para. 70. See Art. 2
49/50/129/146, which speak only of acts com- common to the Geneva Conventions, Protocol I,
mitted by "persons". Also: Statutes of the Art. 1.4, and Protocol II, Art. 1.
Nuremberg Tribunal, Art. 6, and of the Tokyo

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determined in the circumstances of each individual case, is whether the

offences were closely related to the armed conflict as a whole!'15
Another criterion which has to be fulfilled is that the act must
be committed against a person protected under international humanitar-
ian law. In the case of the denial of humanitarian assistance, the victims of
such acts will be either civilians, including individuals deprived of their lib-
erty, or prisoners of war (in an international armed conflict). Although
Article 3 common to the Geneva Conventions does not mention the term
"protected person", protection extends to all "persons taking no active part
in the hostilities", who shall be treated humanely.16 Persons who take a
direct part in the hostilities lose their protected status for as long as they are
involved in the actual fighting.17 Regarding violations of international
humanitarian law in non-international armed conflicts, it is now accepted
that they can give rise to individual criminal responsibility.18 The denial of
humanitarian assistance can therefore constitute a war crime regardless of
whether it occurs in international or in non-international armed conflicts.

Particular offences
(a) Wilful killing or murder
"Murder is a crime that is clearly understood and well defined
in the national law of every State."19 Murder is a war crime in both inter-
national and non-international armed conflicts.20 The Geneva
Conventions and their Additional Protocols employ the term "wilful

15 ICTY, Prosecutor v. Dusko Tadic a.k.a Jurisdiction in the Tadic case, op. cit. (note 14).
"Duie": Opinion and judgment, 7 May 1997, Further evidence in support of that view is given
Case No. IT-94-1-AR72, para. 573 (emphasis by the Statute of the ICTR, which confers Jurisdic-
added). tion on the Court with respect to serious viola-
16 Art. 3.1. common to the Geneva Con- tions of common Art. 3 and Protocol II, Art. 4, and
ventions. Fundamental guarantees are also in- by the Statute of the ICC, Art. 8.2(c) and (e).
eluded in Protocol II, Art. 4. 19 1996 Draft Code of Crimes against the
17 See Protocol I, Art. 51.3, and Protocol II, Peace and Security of Mankind, Report of the
Art. 13.3. The fact that civilians may include International Law Commission on the work of its
those who at one time bore arms was confirmed, forty-eighth session 6 May-26 July 1996,51U N
inter alia, in the Vukovar decision of the ICTY: The 6A0R Supp. (No. 10), UN Doc. A/51/10, p. 96.
Prosecutor v. Mrksic, Radic, Sljavancanin and 20 Murder in internal armed conflicts is recog-
Dokmanovic: Rule 61 Decision, 3 April 1996, nized as a war crime in, inter alia, the Statutes of
IT9513R61, para. 29. the ICTR, Art. 4(a), and of the ICC, Art. 8.2(c)(i),
18 The first time that the criminality of such as well as in the jurisprudence of the ICTY and
violations was asserted by an international tri- the ICTR.
bunal was the Decision on the Appeal on

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killing" in the context of an international armed conflict, where this is

considered a grave breach,21 and "murder" in the context of an internal
armed conflict.22 Regarding a difference between the two terms, the
ICTY found that there "can be no line drawn between 'wilful killing' and
'murder'which affects their content".23 The elements of murder constitut-
ing a war crime are causing the death of a protected person, that the death
results from an act or omission contrary to the law of armed conflicts, and
that the perpetrator acted wilfully.24
The crime of wilful killing can be committed either by act or
by omission; this was confirmed by the ICTY and the ICTR. 25 If civilians
die as a clear result of the unlawful denial of humanitarian assistance, for
instance if a region is completely blocked from the outside world for a
long period, then it is arguable that the denial constitutes murder if the
other conditions are fulfilled. This could also be the case when detainees
are unlawfully deprived of the most essential goods. In its comment on the
prohibition of wilful killing, the Commentary published by the I C R C
says that "it seems, therefore, that persons who gave instructions for the
food rations of civilian internees to be reduced to such a point that defi-
ciency diseases causing death occurred among the detainees would be held
responsible".26 Furthermore, the Israeli Statute on crimes against human-
ity, for example, mentions that death through starvation is tantamount to
deliberate killing;27 and a commentator expressly stated that "the reduction
of rations for prisoners of war resulting in their starvation falls into the cat-
egory of wilful killing".28

21 Geneva Conventions, Arts 50/51/130/147. 1998, Case No. ICTR-96-4-T, para. 589 (consider-
22 Art. 3.l(a) common to the Geneva ing murder as a crime against humanity).
Conventions and Protocol II, Art. 4.2(a). 26 lean S. Pictet (ed.), Commentary, IV,
23 ICTY, The Prosecutor v. Zejnil Delalic, Geneva Convention relative to the Protection of
Zdravko Muck a.k.a. "Pavo", Hazim Delic, Esad Civilian Persons in Time of War, ICRC, Geneva,
Landzo a.k.a. "Zenga", Judgment, 16 November 1958, ad Art. 147, p. 597.
1998, Case No. IT-96-21-T, para. 422. 27 "Nazi and Nazi Collaborators (Punishment)
24 See, e.g., Paper prepared by the ICRC on Law, 5710/1950, Section I (b)", in E. Lauterpacht
Article 8, paragraph 2(0), of the Rome Statute of (ed.), International Law Reports, Vol. 36,
the ICC, Preparatory Commission for the ICC, Butterworths, London, 1968, p. 7.
19 February 1999, PCNICC/1999/WGEC/INF.1 28 RudigerWolfrum, "Enforcementof interna-
(with references to case law). tional humanitarian law", in Dieter Fleck (ed.),
25 See, e.g., Delalic Judgment, op. cit. Handbook of Humanitarian Law in Armed
(note 23), para. 424, and ICTR, The Prosecutor v. Conflict, Oxford University Press, 1995, p. 532.
Jean Paul Akayesu, Judgment, 2 September

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In order for the element of unlawfulness to apply, a person

responsible for impeding the delivery of relief supplies must violate at least
one of the provisions on humanitarian assistance mentioned above. The
condition that the State must give its consent and has a right to impose
certain restrictions sometimes makes it difficult to establish such unlawful-
ness. However, as stated before, if the survival of civilians or prisoners of
war is threatened, a relief operation must be allowed.
The term "wilful" is understood to include "intent" and
"recklessness", but to exclude ordinary negligence.This is stated in the
ICRC's Commentary on the Geneva Conventions,29 and was confirmed
by various decisions handed down by the ad hoc Tribunals for the former
Yugoslavia and for Rwanda. In the Delalic case, for example, the ICTY
held that "the necessary intent (...) required to establish the crimes of wil-
ful killing and murder (...) is present where there is demonstrated an inten-
tion on the part of the accused to kill, or inflict serious injury in reckless
disregard of human life".30 In the case of wilful killing committed by omis-
sion, intent can be inferred if death is the foreseeable consequence of such
an omission.31
It would seem therefore that the withholding of relief can
under certain circumstances be considered wilful killing. Recent interna-
tional jurisprudence provides little precedent for this interpretation, how-
ever. In three cases currently before the ICTY, depriving inmates of food
and other vital services in detention centres constitutes the basis for the
charges of war crimes and crimes against humanity; these are, however,
being brought under the headings "wilfully causing great suffering or seri-
ous injury to body or health", "cruel treatment" and "inhumane acts".32
Acts which resulted in indictments for wilful killing or murder were
killings by shooting, mutilations resulting in death and the like. That the
widespread and also well-documented instances of denial of humanitarian

29 See, e.g., ICRC Commentary on Protocol I, 32 ICTY, The Prosecutor v. Dragan Nikolic,
op. cit. (note 9), Art. 85, para. 3474, p. 994. a.k.a. "lenkl" Nikolic, Indictment, 4 November
30 Delalic Judgment, op. cit. (note 23), 1994, Case No. IT-94-2; ICTY, The Prosecutor v.
para. 439. Milorad Krnojelac, a.k.a. "Mico", Indictment, 6
31 ICRC Commentary on the Fourth Geneva June 1997, Case No. IT-97-25-I; Delalic Judgment,
Convention, op. cit. (note 26), Art. 147, p. 597. op. cit. (note 23).

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aid33 were not used as a basis for indictments might be due to the fact that,
considering the limited time and resources available to the Tribunal, other
grave violations of international law are considered more serious and easier
to prove because of a more direct relationship between the acts committed
and the consequences thereof.
(b) Torture, inhuman treatment, wilfully causing great suffer-
ing or serious injury to body or health
"Torture or inhuman treatment" and "wilfully causing great
suffering or serious injury to body or health" are grave breaches under the
Geneva Conventions. In internal armed conflicts common Article 3, para.
l(a), and Protocol II,Article 4, para. 2(a), prohibit "cruel treatment" and "tor-
ture".The offence of torture in the context of an international armed con-
flict carries the same meaning as in the context of a non-international armed
conflict; the same is true of inhuman treatment and cruel treatment.34
Torture is criminally punishable in both international and
non-international armed conflicts.35 It was defined by the 1984 Torture
Convention as "any act by which severe pain or suffering, whether physi-
cal or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punish-
ing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in or incidental to
lawful sanctions".36 This definition was considered by the ICTY and the

33 See, e.g., the various Reports by the 34 See, e.g., Delalic Judgment, op. cit.
Special Rapporteur of the Commission on (note 23), para. 443.
Human Rights for the Former Yugoslavia, in par- 35 The fact that torture also constitutes a war
ticular: Sixth periodic report on the situation of crime in non-international armed conflicts is rec-
human rights in the territory of the former ogriized, inter alia, in the Statutes of the ICTR,
Yugoslavia, submitted by Mr Tadeusz Art. 4(a), and of the ICC, Art. 8.2(c)(0, as well as
Mazowiecki, Special Rapporteur of the in the jurisprudence of the ICTY and the ICTR.
Commission on Human Rights, pursuant to para- 361984 Convention against Torture and Other
graph 32 of Commission resolution 1993/7 of Cruel, Inhuman and Degrading Treatment or
23 February 1993. UN Doc. E/CN.4/1994/110 Punishment. Art. 1(2) of this Convention contem-
(21 February 1994), Chapter 1.1.: Human rights plates that the term "torture" may have a
issues arising from interference with humanitar- broader application under other international
ian aid, pp. 12-14. instruments.

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ICTR as representing customary international law, also in international

humanitarian law.37
If the definition of the Torture Convention is applied, the
denial of humanitarian assistance can constitute torture only if it causes
severe pain or suffering, for example as a result of a serious shortage of
goods essential for the survival of the civilian population. Furthermore, the
"purpose" requirement must be fulfilled. The withholding of food from
prisoners, for example, could be committed for all the enumerated pur-
poses. The list of purposes is, however, not exhaustive, and the prohibited
purpose must simply be part of the motivation behind the conduct and
need not be the predominating or sole purpose.38 Importantly, the ICTY
stated that the condition that "the suffering be inflicted by or at the insti-
gation of or with the consent or acquiescence of a public official or other
person acting in an official capacity" must be interpreted to include offi-
cials of non-State parties to a conflict.39 It also found that torture extends
to officials who "take a passive attitude or turn a blind eye to torture".40 As
wilful killing, torture can be committed either by act or by omission.41 The
Special Rapporteur on Torture mentioned the prolonged denial of food as
constituting torture in one of his reports.42
It might be easier to prove that impeding the delivery of relief
amounts to inhuman treatment than to establish that it constitutes torture,
as the threshold for the former crime is lower. Inhuman treatment, as a
grave breach within the meaning of the Geneva Conventions, involves acts
or omissions that cause severe physical or mental suffering or injury or

37 Detalic Judgment, op. cit. (note 23), tion. See Discussion paper proposed by the
para. 459; ICTY, The Prosecutorv. Furundzija, Coordinator of the Preparatory Commission for
Judgment, 10 December 1998, Case the ICC, Working Group on Elements of Crimes,
No. IT-95-17/1-PT, para. 160; Akayesu Judgment, 25 February 1999, PCNICC/1999/WGEC/RT.2, p.
op. cit. (note 25), para. 593. There exists, how- 2.
ever, some controversy as to whether the spe- 38 This was confirmed in the Delatic
cific purpose and an official capacity or Judgment, op. cit. (note 23), para. 470.
connivance are still necessary for the crime of 39 Ibid., para. 473.
torture. The definition of torture as a crime 40 Ibid.
against humanity in the ICC Statute eliminated 41 Ibid., para. 468.
these two requirements (Art. 7.2(e)), and the cur- 42 Report of the Special Rapporteur,
rent discussions between States on the ele- Mr P. Kooijmans, appointed pursuant to the
ments of war crimes under the Statute of the ICC Commission on Human Rights, UN Doc. Res.
give an indication that at least the "official" 1995/33, E/CN.4/1986/15, 19 February 1986,
requirement may be eliminated from the defini- para. 119.

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constitute a serious attack on human dignity.43 The threshold is also lower

for the crime of"wilfully causing great suffering or serious injury to body
or health".44 Unlike the case of torture, the purpose of an act is not an ele-
ment of the offence; the definition can, for example, also be held to cover
mental suffering.45
The ICTY established that all acts or omissions found to con-
stitute torture or wilfully causing great suffering or serious injury to body
or health would also constitute inhuman treatment, but that the latter is
not limited to those acts already incorporated in the former two. Instead,
inhuman treatment extends further to acts which "violate the basic princi-
ple of humane treatment, particularly the respect for human dignity".46
Depriving civilians or prisoners of war of relief will in many cases be con-
trary to the principle of humanity and therefore constitute inhuman treat-
ment. In the Delalic case the Trial Chamber held that the "creation and
maintenance of an atmosphere of terror in the Celebici prison camp, by
itself and a fortiori, together with the deprivation of adequate food, water,
sleeping and toilet facilities and medical care, constitutes the offence of
cruel treatment under Article 3 of the Statute, and wilfully causing great
suffering or serious injury to body or health under Article 2 of the
Statute".47
Denial of assistance could also constitute an "outrage upon
personal dignity, in particular humiliating and degrading treatment", an act
prohibited under the Geneva Conventions and their Protocols,48 and an
international crime also in internal armed conflicts, as the Statutes of the
ICTR and die ICC now clearly confirm.49

43 Delalic Judgment, op. cit. (note 23), 45 See, e.g., ICRC Commentary on the Fourth
para. 442. Geneva Convention, op. cit. (note 26), ad
44 "Wilfully causing great suffering or serious Art. 147, p. 599; Delalic Judgment, op. cit. (note
injury to body or health" was defined by the ICTY 23), para. 509.
as "an act or omission that is intentional, being 46 Ibid. See also Furundzija Judgment, op. cit.
an act which, judged objectively, is deliberate (note 37), paras 542-544.
and not accidental, which causes serious mental 47 Delalic Judgment, op. cit. (note 23), para.
or physical suffering or injury. It covers those acts 1119.
that do not meet the purposive requirements for 48 Common Art. 3.i(c), Protocol I, Art. 75.2Q3),
the offence of torture, although clearly all acts and Protocol II, Art. 4.2(e).
constituting torture could also fall within the 49 ICTR Statute, Art. 4(e), ICC Statute,
ambit of this offence." Furundzija Judgment, op. Art. 8(2)(b)(xxi) and (c)(ii). See also 1996 ILC
cit. (note 37), para. 511. See also Delalic Draft Code of Crimes, op. cit. (note 19), Art. 2o(c)
Judgment, op. cit. (note 23), para. 442. and (f).

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(c) Starvation
The prohibition to starve civilians as a "method of warfare" is
included in Article 54 of Protocol I andArticle 14 of Protocol II."To use
starvation as a method of warfare would be to provoke it deliberately, caus-
ing the population to suffer hunger, particularly by depriving it of its
sources of food or of supplies."50 Starvation is not specifically mentioned as
a grave breach in Protocol I. However, the Appeal Chamber of the ICTY
confirmed in the Tadic case that even if the Geneva Conventions and
Protocols do not explicitly stipulate that a prohibited act constitutes a
crime, it is still possible to establish criminal responsibility for such an act.51
The Statute of the ICC explicitly mentions the denial of
humanitarian assistance as an example of an act that may lead to starvation.
According to the relevant provision, "[i]ntentionally 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 serious violation of the laws and cus-
toms of war.52 However, starvation has been included in the jurisdiction of
the ICC only in respect of international armed conflicts, although there
has been a considerable amount of lobbying for its inclusion in the list of
crimes committed in non-international armed conflicts as well. This is
regrettable since the prohibition of starvation is also mentioned in Protocol
II 53 In accordance with Article 10 of the ICC Statute, this omission will
not, however, change the customary status of the rule.54 As a matter of pre-

50 ICRC Commentary on Protocol I, op. cit. that criminality may extend beyond grave
(note 9), ad Art. 54, para. 2089, p. 653. "The breaches in any case. Op. cit. (note 26), ad
term 'starvation' means the action of subjecting Art. 50, p. 371.
people to famine, i.e., extreme and general 52 ICC Statute, Art. 8.2(b)(xxv).
scarcity of food." ICRC Commentary on Proto- 53 Protocol 11, Art. 14.
col II, op. cit. (note 9), ad Art. 14, para. 4791, 54 Art. 10 of the ICC Statute: "Nothing in this
p. 1456. Part shall be interpreted as limiting or prejudic-
51 Tadic Appeal on Jurisdiction, op. cit. ing in any way existing or developing rules of
(note 14), para. 128. The ICRC Commentary on international law for purposes other than this
the Conventions states that the list of grave Statute."
breaches is not to be taken as exhaustive and

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sent customary international law, starvation can constitute a war crime

regardless of the kind of conflict in which it occurs.55
In some cases, it might be difficult to prove the specific intent
to use starvation as a method of warfare, i.e., as "a weapon to annihilate or
weaken the population".56 However, if the outcome of impeding humani-
tarian assistance is obvious according to the ordinary course of events, the
intention can be inferred. Military necessity cannot serve as a justification,
as even during sieges or blockades relief operations must be allowed.57
(d) Collective punishments
Article 33 of the Fourth Geneva Convention and Article 4,
para. 2(b), of Protocol II prohibit collective punishments, which are defined
as "penalties of any kind inflicted on persons or entire groups of persons in
defiance of the most elementary principles of humanity, for acts that these
persons have not committed".58 The Commentary on Protocol II pub-
lished by the ICRC stresses the fact that the term "collective punishments"
should be understood in its widest sense and as including any kind of sanc-
tion.59 Collective punishments were, inter alia, qualified as a war crime by
the Statute of the ICTR 60 as well as by the ILC Draft Codes of crimes of
1991 and 1996.61 Since these acts are punishable when committed in

55 Deliberate impeding of the delivery of food Sudan and starvation in Rwanda, respectively, to
and medical supplies to the civilian population in be "brought to justice" (UNGA res. 52/140
internal armed conflicts was condemned as a (1997)> para. 2; Interim Report of the
violation of humanitarian law by the Security Commission of experts on the evidence of grave
Council on many occasions. It was also stressed violations of international humanitarian law in
that "those who commit or order the commission Rwanda, S/1994/1125, paras 107 and 150).
of such acts will be held individually responsible 56 ICRC Commentary on Protocol I, op. cit.
in respect of such acts" (S/RES/794 (1992), (note 9), Art. 54, para. 2090, p. 653.
para. 5, on Somalia). See also S/RES/787 57 "Moreover, if it turned out to be impossi-
(1992), para. 7, on Bosnia-Herzegovina. With ble to send sufficient aid for that part of the pop-
regard to Bosnian enclaves, the President of the ulation of a besieged or encircled area that is
Security Council declared that "the deliberate particularly weak, the principle of the prohibition
impeding of the delivery of food and humanitar- of starvation should henceforth dictate the evac-
ian relief essential forthe survival of the civilian uation of such persons." ICRC Commentary on
population constitutes a violation of the Geneva Protocol I, op. cit. (note 9), ad Art. 54.1, para.
Convention of 1949 and the Council is committed 2096, p. 654.
to ensuring that individuals responsible for such 58 ICRC Commentary on the Fourth Geneva
acts are brought to justice" (5/25334, 2 5 Convention, op. cit. (note 26), ad Art. 33, p. 225.
February 1993). Furthermore, the General 59 ICRC Commentary on Protocol II, op. cit.
Assembly and an Independent Commission of (note 9), ad Art. 4.2, para. 4536, p. 1374.
Experts called for those responsible for the
6oArt.4(b).
impediment of humanitarian assistance in
6iArt.22.2(a);Art.2o(f)(iO.

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THE DENIAL OF HUMANITARIAN ASSISTANCE

non-international armed conflicts, an argument can be made that they

should a fortiori be punishable in international armed conflicts. If humani-
tarian assistance is impeded in order to punish certain persons, this could
constitute collective punishment. Depending on the result, the acts in
question could at the same time constitute murder, inhuman treatment or
other crimes.

2. Crimes against humanity

Recent international jurisprudence and the adoption of the
ICC Statute have helped clarify the definition of crimes against humanity,
which had been a matter of controversy since the Nuremberg Charter. It
is now widely accepted that the following conditions have to be fulfilled:
acts have to be committed against any civilian population and in a wide-
spread or systematic manner, and must be based on a policy by a State, an
organization or a group.62 A connection to an armed conflict is no longer
necessary, and a majority of sources indicate that a discriminatory intent
behind every act is not required.63
The requirement that an act be committed against any civil-
ian population will, in the case of humanitarian assistance, generally be ful-
filled. "Widespread manner" is normally interpreted as meaning that acts
must be directed against a multiplicity of victims. "It therefore excludes an
isolated inhumane act committed by a perpetrator acting on his own ini-

62 See, e.g., Statutes of the ICTY, Art. 5, of the Regarding discriminatory intent, there still exists
ICTR, Art. 3, and of the ICC, Art. 7.1 and 7.2(a). some controversy around the issue whether an
See also the 1996ILC Draft Code of Crimes, op. offender must have a reason linked to some
at. (note 19), Art. 18, and the jurisprudence of the character trait of the victim, and in particular,
ICTY and the ICTR. whether this ground for commission is relevant
63 Although required in the Nuremberg to all crimes against humanity or only to the cat-
Charter, such a connection to an armed conflict egory of persecutions. Although the Trial
is now no longer considered to be necessary. The Chamber in the Tadic case adopted the require-
ICTR and ICC Statutes do not stipulate such a ment of discriminatory intent for all crimes
requirement. It was, however, reintroduced in the against humanity, it confirmed that this was not
ICTY Statute, but the ICTY Appeal Chamber con- necessary under customary international law
firmed in the Tadic case that the crime had been (paras 652 and 716). Furthermore, the majority
defined more narrowly than necessary:"(...) cus- of States decided that murder and other crimes
tomary international law no longer requires any are so grave that the ground for commission is
nexus between crimes against humanity and irrelevant and excluded this requirement from
armed conflict (...)". (Jadic Appeal on the ICC Statute.
Jurisdiction, op. clt. (note 14), para. 78).

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 RICR SEPTEMBRE IRRCSEPTEMBER 1999 VOL.81 N"835

tiative and directed against a single victim."64 The concept of "systematic"

has been denned as "dioroughly organized and following a regular pattern
on the basis of a common policy involving substantial public or private
resources. There is no requirement that this policy must be adopted for-
mally as the policy of a State".65 Furthermore, the crimes committed
should "form a part of a system based on terror or constitute a link in a
consciously pursued policy directed against particular groups of people".66
While some commentators hold that this policy must be that of a State,
the more recent view is that acts can be instigated or directed not only by
a government but also by any organization or group.67 Regarding the level
of formalization of the policy, the Trial Chamber asserted in the Tadic
Decision that a policy "need not be formalized and can be deduced from
the way in which the acts occur. Notably, if the acts occur on a widespread
or systematic basis that demonstrates a policy to commit those acts,
whether formalized or not".68
In order for the denial of humanitarian assistance to become a
crime against humanity, it would therefore need to be either systematic or
widespread and based on a policy. This excludes random acts of impedi-
ment of humanitarian aid that are not committed as part of a broader plan
or policy. Examples would be the spontaneous looting of a warehouse
containing relief goods by civilians or soldiers, or spontaneous attacks on
relief convoys by a group of drunken soldiers. Isolated criminal conduct
which brings about the blockade of relief is not a crime against humanity,
64 See, e.g., 1996ILC Draft Code of Crimes, the customary formulation "widespread or sys-
op. cit. (note 19), pp. 94-95. The International tematic" in its Article 7(1).
Law Commission used the term "large scale" 66 Public Prosecutor v. Menten, Netherlands,
instead of "widespread" to clarify that a territor- International Law Reports, op. cit. (note 27),
ial extension of acts is not necessarily needed. Vol. 75, pp. 362-363.
65 Ibid., p. 94. The wording "against any civil- 67 1996 ILC Draft Code of Crimes, op. cit.
ian population" included in most definitions of (note 19), Art. 18. Neither the ICTY nor the ICTR
crimes against humanity has sometimes been Statute make any reference to governmental pol-
interpreted as demanding systematic and wide- icy. The Trial Chamber of the ICTY confirmed that
spread action. However, the decision in the Tadic a State policy is no longer required (.Tadic
case stipulated that"(...) it is now well estab- Judgment, op. cit. (note 15), para. 654).
lished that the requirement that the acts be Furthermore, States recently adopted the word-
directed against a civilian "population" can be ing "pursuant to or in furtherance of a State or
fulfilled if the acts occur either on a widespread organizational policy" for Art. 7.2(a) of the
basis or in a systematic manner. Either one of Statute of the ICC.
these is sufficient to exclude isolated or random 68 Tadic Judgment, op. cit. (note 15),
acts". Tadic Judgment, op. cit. (note 15), para. 653.
para. 653. Furthermore, the ICC Statute includes

57*
THE DENIAL OF HUMANITARIAN ASSISTANCE

however tragic its consequences may be.69 Acts of impediment of aid after
a general breakdown of law and order do not normally qualify as crimes
against humanity. However, the breakdown might have been orchestrated
to hide the nature of the crimes — seemingly spontaneous acts are often
the results of careful planning. Even if there is only a small number of vic-
tims, a crime against humanity may still be taking place as long as the "sys-
tematic" condition is fulfilled. It can be argued that the commission of a
single act injuring one victim can fit the definition if there is an intent
thereby to act against or to target other civilians.70 For instance, only one
aid worker would need to be killed in order to make all the agencies pull
out of the region, thus leaving the population without assistance. This
could be construed as a crime against humanity, depending on the conse-
quences of the act for the population. The possibility that a single act may
qualify as a crime against humanity if there is a link with a widespread or
systematic attack against a civilian population was, for example, endorsed
by the Trial Chamber in the Vukovar Hospital Case.71
Regarding the intent required for the denial of humanitarian
assistance to constitute a crime against humanity, the Tadic Judgment con-
firmed that, in addition to the intent to commit the underlying offence,
the perpetrator must know of the broader context in which his act occurs.
The Trial Chamber referred to the approach taken by the majority in
R. u Finta by the Canadian Supreme Court, which ruled that "the mental
element required to be proven to constitute a crime against humanity is
that the accused was aware of or wilfully blind to facts or circumstances
which would bring his or her acts within crimes against humanity".72 It is
not necessary, however, to establish that the accused knew that his actions
were inhumane73 or that he knew exactly what would happen to the vic-
tims.74

69 While personal motives for acts resulting York Law School Journal of Human Rights,
in assistance not reaching needy persons may Vol. 12,1995, p. 60.
be present, they should not, however, be the 71 Vukovar Decision, op. cit. (note 17),
sole motivation for the act. See, e.g., Tadic para. 30. This was confirmed in the Tadic
Judgment, ibid., para. 658, where several judgment, op. cit. (note 15), para. 649.
German cases arising from the Second World 72 Tadic judgment, op. cit. (note 15),
War are mentioned. para. 657.
70 Jordan Paust, "Threats to accountability 73 Ibid.
after Nuremberg: Crimes against humanity, 74 Ibid.
leader responsibility and national fora", New

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Particular offences
The following offences constituting crimes against humanity
could be interpreted to include a denial of humanitarian assistance: mur-
der, extermination, torture, persecution, and other inhumane acts. Murder
has already been discussed in the chapter on war crimes and will therefore
not be mentioned again.
(a) Extermination
Extermination is normally interpreted as murder on a large
scale. The U N International Law Commission explained the difference
between murder and extermination as follows: "Extermination is a crime
which by its very nature is directed against a group of individuals. In addi-
tion, the act of extermination involves an element of mass destruction
which is not required for murder."75 Unlike genocide, extermination also
applies to situations in which some members of a group are killed while
others are spared.
An important step towards regarding the denial of humanitar-
ian assistance as a crime against humanity has been taken in the definition
of extermination in the ICC Statute, which affirms that extermination
"includes the intentional infliction of conditions of life, inter alia the depri-
vation of access to food and medicine, calculated to bring about the
destruction of part of a population".76 Since not all the crimes are denned
in the Statute and even fewer examples are given, the fact that these acts
are the only explicit examples of extermination is remarkable and shows
the importance of the prohibition of such conduct. If the circumstances of
the denial of humanitarian assistance are such that it can be considered
"calculated to bring about the destruction of part of a population", then
the conditions for extermination seem to be fulfilled.
(b) Torture
The definition of torture as a crime against humanity seems
to differ from its definition as a war crime. The Statute of the ICC contains
the following definition: "Torture means the intentional infliction of severe
pain or suffering, whether physical or mental, upon a person in the cus-
tody or under the control of the accused; except that torture shall not
include pain or suffering arising only from, inherent in or incidental to,
75i996ILCDraftCodeofCrimes,op.c/f. (note 76Art.7.2(0).
19), p. 97. 77Art.7.2(e).

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THE DENIAL OF HUMANITARIAN ASSISTANCE

lawful sanctions."77 The Akayesu Judgment, however, used the same defini-
tion as the Torture Convention.78 It is thus not clear whether the ICC def-
inition eliminating the requirements of purpose and some official
acquiescence constitutes custom or whether custom is only moving in this
direction.79
If the definition in the ICC Statute is applied, then it is easier
to argue that the withholding of aid constitutes torture. "Under the con-
trol" could be interpreted as limiting the crime to acts in a detention situa-
tion. In this case, the definition would apply only to persons in a prison
camp or other detention facility who are denied vital goods and services.
On the other hand, it would also be possible to interpret "under the con-
trol" in a broader sense. For example, if a given territory is completely
encircled by enemy troops, as was the case in some so-called "safe areas" in
Bosnia, or during an occupation by an enemy State, then access to assis-
tance for the people in the encircled or occupied areas lies completely in
the hands of the occupying or besieging forces. In such instances, the pop-
ulation can be considered under the effective control of these forces, which
may inflict severe suffering on them.
(c) Persecution
While the term persecution has never been clearly defined in
international criminal law,80 it normally covers any severe and wilful depri-
vation of the fundamental rights of members of an identifiable group. The
ICC Statute defines persecution as the "intentional and severe deprivation
of fundamental rights contrary to international law by reason of the iden-
tity of the group or collectivity",81 on "political, racial, national, ethnic, cul-
tural, religious, gender (...) or other grounds that are universally recognized
as impermissible under international law".82 No definite grounds for per-
secution are required under customary international law; a variety of dif-

78 Akayesu Judgment, op. cit. (note 25), 83 See, e.g., 7ad/cjudgment, op. cit. (note 15),
para. 593. See also the definitions of torture as a para. 711.
war crime in the Delalic and Furundzija 84 Even though the ICTY Statute contains the
judgments, note 37. conjunctive "and" (Art. s(h) mentions "persecu-
79 See Art. 10 of the ICC Statute. tions on political, racial and religious grounds"),
80 See M. Cherif Bassiouni, Crimes against the Trial Chamber ruled that the discriminatory
Humanity in International Criminal Law, Nijhoff bases should be read independently of each
Publishers, Dordrecht, 1992, p. 318. other. Tadic Judgment, op. cit. (note 15),
81 Art. 7.2Q5). para. 713.
82 Art. 7.1O1).

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ferent grounds have been listed in international instruments.83 One of

these grounds is sufficient for the act to constitute persecution.84
The Tadic Judgment confirmed the view that persecution is a
crime per se, and does not have to refer to other crimes: "Because the 'per-
secution type' is separate from the 'murder type' of crimes against human-
ity it is not necessary to have a separate act of an inhumane nature to
constitute persecution; the discrimination itself makes the act inhumane."85
The crime of persecution thus encompasses acts of varying severity, from
acts that are mentioned under other crimes which are inhumane per se, to
acts that become inhumane through the discrimination behind them. In
addition to the criminal liability which attaches to certain inhumane acts,
there is an additional element of culpability when they are committed
with discriminatory intent; this was stated to constitute customary interna-
tional law by the Trial Chamber in the Tadic case.86
Apart from the crimes that could be interpreted to include
the denial of humanitarian assistance and that would also count as persecu-
tion if committed for discriminatory reasons, it is arguable that any with-
holding of assistance based on discrimination constitutes persecution,
without regard to the consequences of the withholding. The Trial
Chamber in the Tadic case found, for example, that economic measures of
a personal type, such as the deprivation of food, can constitute persecutory
acts.87
(d) Other inhumane acts
The category of "other inhumane acts" ensures that new
forms of crimes against humanity will not escape international criminal
responsibility. The notion of other inhumane acts is circumscribed by two
requirements. First, according to the ejusdem generis principle of interpreta-
tion, other inhumane acts include only acts that are of a nature similar to

85 Ibid., para. 697. The last draft of the ICC connection with any act referred to in this para-
Statute before the Rome Conference included graph or any crime within the jurisdiction of the
the options that all crimes had to be based on Court". ICC Statute Art. 7.i(h). However, this will
discriminatory grounds, and that persecutions in practice not make a big difference, as in most
had to be committed in connection with other cases there will be a link to another act.
crimes within the jurisdiction of the Court. 86 Ibid., para. 699.
Unfortunately, instead of excluding both possi- 87 The Trial Chamber referred to several cases
bilities as not in conformity with customary inter- of the Nuremberg Tribunal. See Tadic Judgment,
national law, a consensus was found that kept a op. cit. (note 15), para. 707.
link to other crimes or acts: "Persecution (...) in

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THE DENIAL OF HUMANITARIAN ASSISTANCE

those listed before, such as murder, extermination, enslavement, deporta-

tion, and torture. Second, the acts must in fact cause injury to human
beings in terms of physical or mental integrity, health or human dignity. In
the ICC Statute, other inhumane acts are mentioned at the end of the list
of crimes against humanity: "[o]ther inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental
or physical health."88
Deprivation of assistance can be an example of an inhumane
act, if it intentionally causes great suffering, or serious injury to body or to
mental or physical health. Importandy, the U N Secretary-General in his
analysis of the Nuremberg Judgment suggested that depriving part of the
civilian population of their means of subsistence might be one example of
such an "other inhumane act".89 In the Nikolk Indictment, the Prosecutor
of the ICTY stated: "Nikolic (...) committed a crime against humanity by
participating in inhumane acts against more than 500 civilians (...) by
endangering the health and welfare of detainees by providing inadequate
food, endangering the heakh and welfare of detainees by providing living
conditions failing to meet minimal basic standards (,..)."90

3. Genocide
Genocide is often regarded as the most atrocious international
crime. One should therefore be very careful to preserve its special status
and not to water down its definition to any instance of mass killing.
Genocide is the only crime against humanity which has been authorita-
tively codified in one international instrument, the 1948 Genocide
Convention. 91 The treaty's generally accepted definition of genocide is
"any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or rehgious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting on the group conditions

88 Art. 7.i(k). 91 The Advisory Opinion of the I.C.J. on

89 The Charter and Judgement of the Reservations to the Convention on the
Nurnberg Tribunal: History and Analysis, Prevention and Punishment of the Crime of
Memorandum submitted by the Genocide, of 28 May 1951, confirmed that the
Secretary-General, UN Sales No. 1949.V.7,1949, prohibition of genocide is part of customary
p. 67. international law. I.CJ. Reports 1951, p. 12.
90 Nikolic Indictment, op. cit. (note 32),
para. 24.1. See also other cases cited in note 32.

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of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures to prevent births within the group; (e) Forcibly
transferring children of the group to another group". 92 No nexus to an
armed conflict or to another crime is therefore necessary. The provision of
the Genocide Convention is reproduced in the Statutes of the ICTY, the
ICTR and the ICC.93 For the denial of humanitarian assistance to consti-
tute genocide, the following three elements must thus be present: the
denial must amount to one of the enumerated acts, the act in question
must be directed against one of the mentioned groups, and the perpetrator
must have the intent to destroy the group in whole or in part.
The attributes defining protected groups are not addressed by
the Genocide Convention. In particular, the definition of nationality and
the difference between ethnic and racial group are problematic. The Trial
Chamber in Akayesu held that "a national group is denned as a collection
of people who are perceived to share a legal bond based on common citi-
zenship, coupled with reciprocity of rights and duties".94 "An ethnic
group is generally defined as a group whose members share a common
language or culture. The conventional definition of racial group is based on
the hereditary physical traits often identified with a geographical region,
irrespective of linguistic, cultural, national, or religious factors. The religious
group is one whose members share the same religion, denomination or
mode of worship."95
Another open question is whether the targeted group has to
be separate from the perpetrator's group. It is clear that the definition does
not require the complete annihilation of a group, but not how large the
part of the targeted group has to be for the act to constitute genocide. This
must be decided on a case-by-case basis, depending on the nature of the
victims and the proportion they represent of the complete population of
the group. As in the case of crimes against humanity, if the leadership of a
group is targeted, the number of victims may be lower but the impact will
be stronger. Contrary to war crimes and crimes against humanity, in the
case of genocide even the direct and public incitement to commit the
crime is punishable.96 A leader who publicly calls for the impeding of relief

92 Convention on the Prevention and 94 Akayesu Judgment, op. cit. (note 25),
Punishment of the Crime of Genocide, of para. 512.
9 December 1948, Art. 2. 95 Ibid., paras 513-515.
93 Arts 4/2/6 respectively. 96 See Art. 3(0) of the Genocide Convention.

577
THE DENIAL OF HUMANITARIAN ASSISTANCE

to a certain group with the intent to destroy that group could therefore be
held responsible.
Intent is the most difficult element of genocide to prove. In
the absence of a confession, intent can be inferred only from certain fac-
tual circumstances. In the case of denial of humanitarian assistance this
might be particularly difficult: it is already complicated to establish a link
between the act of impeding and the result, but even more so to prove that
the intended result of the denial is destruction of a particular group. The
ICTY found that the specific intent "may be inferred from a number of
facts such as the general political doctrine which gave rise to the acts in
Article 4 [of the ICTY Statute], or the repetition of destructive and dis-
criminatory acts. The intent may also be inferred from the perpetration of
acts which violate, or which the perpetrators themselves consider to vio-
late the very foundation of the group — acts which are not in themselves
covered by the list in Article 4(2) but which are committed as part of the
same pattern of conduct".97 The judges in the Akayesu case stated that the
"general context of the perpetration of other culpable acts systematically
directed against that same group, whether these acts were committed by
the same offender or by others (...)"98 has to be taken into account. Even if
a general genocidal intent can be established, that intent must be imputed
to individual perpetrators to convict them.The closer an individual is asso-
ciated with an organization with genocidal intent, the easier this can be
proved.
Particular offences
The denial of humanitarian assistance could fit into the cate-
gories of"killing members of the group", "causing serious bodily or men-
tal harm to members of the group" and "deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction
in whole or in part", provided that die prerequisites for genocide are ful-
filled. What was said for murder as a war crime is also applicable, mutatis
mutandis, to genocide.

97 ICTY, The Prosecutorv. Radovan Karadzic 98 Akayesu Judgment, op. cit. (note 25),
and Ratko Mladic: Review of Indictment pur- para. 523.
suant to Rule 61, 11 July 1996, Cases 99Ibid., para. 502.
No. IT-95-5-R61 and No. IT-95-18-R61, para. 94.

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(a) Causing serious bodily or mental harm to members of the

group
The ICTR found in the Akayesu Judgment that it is not nec-
essary that the harm caused be permanent and irremediable." It stated that
"the Chamber takes serious bodily or mental harm, without limiting itself
thereto, to mean acts of torture, be they bodily or mental, inhumane or
degrading treatment, persecution".100 This definition would include a very
wide range of acts which certainly encompass the wilful impediment of
relief. This view was confirmed by the Israeli Court in the Eichmann case,
which considered the following acts to constitute infliction of serious
physical or mental harm: "by the enslavement, starvation, deportation and
persecution (...) and by their detention in ghettos, transit camps and con-
centration camps in conditions which were designed to cause their degra-
dation, deprivation of their rights as human beings, and to suppress them
and cause them inhumane suffering and torture".101
(b) Deliberately inflicting on the group conditions of life cal-
culated to bring about its physical destruction in whole or in part
By including this act, the Genocide Convention expanded
the definition of murder and extermination as international crimes. In the
Eichmann case it was held that "deliberately inflicting on the group condi-
tions of life calculated to bring about its physical destruction in whole or
in part" included acts committed with the intention to kill, even if the vic-
tims stayed alive.102 The ICTR concluded that the crime "should be con-
strued as the methods of destruction by which the perpetrator does not
immediately kill the members of the group, but which, ultimately, seek
their physical destruction." It gives the example of subjecting a group of
people to a subsistence diet and the reduction of essential medical services
below minimum requirements.103
As long as the intent requirement is fulfilled, the impeding of
relief could fall within the definition of this act. In an authoritative com-
mentary on the Genocide Convention, the following examples are given
for "conditions of life": placing a group on a subsistence diet, reducing

100 Ibid., para. 504. 102 Ibid., pp. 235-236.

101 Eichmann case, International Law 103 Akayesu Judgment, op. cit. (note 25),
Reports, op. cit. (note 27), p. 238 (emphasis para. 506.
added).

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medical services below a certain minimum level, and withholding suffi-

cient living accommodation.104

Conclusion
The discussion of the previous chapter clearly shows that the
withholding of relief can constitute any of the three crimes considered,
provided that their specific requirements are fulfilled. It will be easier to
prove that the denial of humanitarian assistance is a war crime, as its thresh-
old is lower.105 On the other hand, crimes against humanity and genocide
need not be committed during an armed conflict; furthermore, it will be
possible to prosecute them once the ICC is established, whereas in the case
of war crimes the Statute provides for an "opting out" for a period of seven
years.106 In respect of war crimes, but not the crime of genocide or crimes
against humanity, the ICC also provides that superior orders may under
strict conditions be a defence.107
One difficulty that is common to most instances of denial of
humanitarian assistance is to prove that assistance has been withheld inten-
tionally. On the other hand, as mentioned, the intent to commit certain
acts can often be deduced from the way in which aid is actually impeded
and from the general conduct of hostilities. These factors can also be con-
clusive for the policy behind the acts required for crimes against humanity
and the special intent for genocide. A further problem is the issue of causal-
ity: how can one prove that there was a direct link between the act of
denial and a certain result, for example the death of a person?
Furthermore, in some instances it might be difficult to ascribe an act to a
specific person. In the case of a prison or a besieged city causality can be
established more easily than in a more complex environment.

104 Nehemiah Robinson, The Genocide 106 ICC Statute, Art. 124. This article permits a
Convention: A Commentary, Institute of Jewish State to declare that it does not accept the juris-
Affairs, New York, i960, pp. 63-64. diction of the Court fora period of seven years
105 The ICC Statute includes a threshold for with respect to war crimes when they are alleged
war crimes in its Art. 8.1. "The Court shall have to have been committed by its nationals or on its
jurisdiction in respect of war crimes in particular territory. Still, following the principle of universal
when committed as a part of a plan or policy or jurisdiction, States are already under an obliga-
as part of a large-scale commission of such tion to prosecute or extradite perpetrators
crimes". This should, however, not introduce a regardless of their nationality or where the crime
new threshold for war crimes but should be was committed.
interpreted as advice to the Prosecutor to con- 107 Art. 33.1.
centrate on the most serious crimes.

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Another question that arises in the context of humanitarian

assistance is whether parties are obliged to suspend the fighting in order to
allow for relief to be delivered and whether their refusal would constitute a
crime. There is no easy answer to this question. Although humanitarian
organizations should not impede military operations, the view that parties
to a conflict should conduct hostilities in such a way as to allow access to
the civilian population is increasingly gaining ground.108 Still, the problem
remains how to prove an intent or a policy behind the fighting.
Having established that under certain circumstances the denial
of aid can constitute a crime under international law, we need to ask our-
selves what difference this will make in reality. As with international
humanitarian law in general, the crucial point is whether the law will be
enforced. As States are generally reluctant to comply with their obligations
to repress violations of humanitarian law, optimism is not appropriate.
While the creation of the ICC is a big step forward, it remains to be seen
how effective it will be. It is to be hoped that the Court will consider the
wilful impediment of relief supplies not only as starvation, which is specifi-
cally mentioned in the Statute, but also as the other crimes discussed in this
article, if the necessary conditions are fulfilled.
It is undoubtedly essential to show caution when declaring a
certain conduct a crime under international law, in particular where crimes
against humanity or genocide are concerned. However, it should not be
forgotten that — although not always as obvious or as easy to prove in the
reality of armed conflicts — the impact of the denial of humanitarian assis-
tance can be just as strong as massacres "committed with knives".

108 In the case of Somalia, for example, the

Security Council demanded a cease-fire through-
out the whole country in order to "promote the
process of relief distribution". SC res. 794 (1992),
3 December 1992, para. 1.

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Resume

Le refus d'assistance humanitaire, un crime en droit

international
par CHRISTA ROTTENSTEINER

Le droit international humanitaire interdit le recours a la

famine contre la population civile en temps de conflit arme. En meme temps,
les Conventions de Geneve et les Protocoles additionnels obligent les parties
au conflit a s'assurer que les personnes civiles recoivent Vassistance dont elles
ont besoin. Le present article examine dans quelles circonstances le refus d'ac-
corder cette assistance humanitaire devient un crime en droit international.
L'auteur approche la question sous trois angles differents : crime de guerre,
crime contre I'humanite et crime de genocide. Cette etude se base sur une
analyse du droit conventionel et des regies coutumieres, completee par I'exa-
men du Statut de la Courpenale internationale et de la jurisprudence des
Tribunaux penaux intemationauxpour I'ex-Yougoslavie etpour le Rwanda.
Toutes les voies pour traduire en justice ceux qui refusent d'accorder une
assistance humanitaire aux victimes de la guerre sont ainsi passees en revue.

582