Amend ‘glaring’ gap in Rome Statute on starvation
by International Bar Association
5 Dec. 2019
Amend ‘glaring’ gap in Rome Statute on starvation in NIACs, urges new IBA report
A new report from the International Bar Association (IBA) War Crimes Committee voices support for the 2018 Swiss proposal to amend the Rome Statute to include the war crime of starvation in non-international armed conflicts (NIACs). Currently, the prohibition of starvation as a war crime in the Rome Statute of the International Criminal Court (ICC) only applies in relation to international armed conflicts.
The Report on the Swiss proposal to amend the Rome Statute to include the war crime of starvation in non-international armed conflicts reviews the underlying support in international humanitarian law for the proposed amendment and examines the varied elements of the crime of intentionally starving civilians, with a particular focus on the framework applicable to NIACs.
The report urges the Assembly of States Parties of the ICC to approve the proposed amendment during its 18th Session at The Hague this week (2–7 December 2019).
Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee, commented: ‘Deliberate starvation of civilians during armed conflict is an abhorrent practice for which the perpetrators must be held accountable. Despite being widely recognised as a violation of humanitarian law, the absence of specific wording in the Rome Statute regarding intentional starvation as a war crime in non-international armed conflict is a glaring oversight that must be addressed.
This is a glaring gap. The detailed amendments proposed by the Government of Switzerland will bring Article 8 of the Rome Statute in line with current international humanitarian law, making it easier to tackle this crime directly.’
Article 8(2)(b)(xxv) of the Rome Statute defines the war crime of starvation as ‘intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.
Starvation as a war crime in the Rome Statute is only included in the provisions applicable to international armed conflicts, and is not currently applicable before the ICC in the context of situations that may amount to NIACs.
In light of this, the Government of Switzerland tabled a proposal in 2018 for the amendment of Article 8 to extend the crime of starvation to situations of NIACs. Alongside an amended definition, the Swiss government proposed the following additions to Article 8(2)(e) of the Rome Statute regarding elements of the crime: the perpetrator deprived civilians of objects indispensable to their survival; the perpetrator intended to starve civilians as a method of warfare; the conduct took place in the context of, and was associated with, an armed conflict not of an international character; and the perpetrator was aware of the factual circumstances that established the existence of an armed conflict.
The report supports the proposal, noting that intentionally starving civilians during NIAC is already explicitly prohibited in law. Article 14 of Additional Protocol II of the Geneva Conventions, an instrument that has been ratified by 168 states, directly prohibits the ‘starvation of civilians as a method of combat’ in NIACs.
Other international mechanisms, including the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’), have also criminalised starvation as a method of warfare in NIACs.
In 2018, the United Nations Security Council recognised in Resolution S/RES/2417 (2018) that starvation can constitute a violation of international humanitarian law regardless of whether it occurs within international armed conflict or non-international armed conflicts.
In addition to voicing support for the Swiss proposal, the report provides an in-depth analysis of the physical and mental elements of the crime of intentional civilian starvation during armed conflict.
A number of questions are highlighted, such as: whether a result element is required (ie, proof that civilians suffered or died as a result of starvation); whether a minimum duration is required; whether starvation can be perpetrated by omission (ie, a state’s failure to ensure adequate provision of sustenance to the population under its power); what items are considered indispensable; the scope of wilfully impeding relief supplies; and the meaning of the phrase ‘as a method of warfare’.
Typical paradigms in which civilians may starve, including scorched earth tactics and the mass forced movement of civilians, are also examined in the report.
Ms D’Alessandra, added: ‘Intentional civilian starvation during armed conflict is a scourge on modern society. Innocent people suffer, and often die, due to denied access to food, medical care and other essential supplies during times of war.
This is true regardless of whether the conflict takes place in an international or non-international context. The proposed amendments to the Rome Statute, if implemented, would serve as a reminder to all jurisdictions that these crimes will not go unpunished.’
http://bit.ly/2PeaefQ http://www.ibanet.org/ http://starvationaccountability.org/news-and-events/vital-amendment-to-the-rome-statute-unanimously-passes
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The human right to safe and healthy working conditions
by Baskut Tuncak
UN special rapporteur on human rights and hazardous substances and wastes
“Despite over 50 years of global recognition, unimaginable advancements in science, medicine and technology, and specific efforts in certain countries and contexts, the right of all workers to safe and healthy working conditions sadly remains far more a privilege, than a universal human right,” says Baskut Tuncak, the UN special rapporteur on human rights and hazardous substances and wastes.
Tuncak tells States that although safe and healthy working conditions is a globally recognized human right, International Labour Organization (ILO) estimates indicate that 2.7 million workers die from unsafe working conditions and exposure each year.
In 2007, Hwang Yumi died in her father’s taxi on her way to hospital. It was five years after she proudly began a job manufacturing consumer products, were she was likely exposed to toxic substances every day without meaningful consent. Yumi died 20 months after she was diagnosed with leukaemia, at the age of 23.
Since his daughter’s death, Yumi’s father did everything he could to ensure there were no more victims. In his mission to prevent the recurrence of abuses he repeatedly turned down substantial offers of compensation by the company.
After an 11-year campaign for justice and accountability by Mr. Hwang and other human rights defenders, the company agreed to compensation and prevention measures to realize the right of over 200 workers to an effective remedy. Tuncak says of the case that although the outcome is a positive step, it only concerns one company in one industry in one country.
“Workers are unquestionably among the most vulnerable to toxic exposures. They are exposed the first and the most,” Tuncak says. “Among workers, there are those that are even more vulnerable and less likely to be adequately protected, such as those working in certain sectors, those living in poverty and workers of reproductive age, whose children also bear the burden of exposure to toxic substances.”
In this regard, he cites the case of Yvette, who worked daily with an unidentified substance that she had nicknamed “green gunk,” in the high-technology sector of an industrialized country, never informed by her employer of well-known reproductive health risks of exposure to the chemical mixture.
By the time Yvette’s child was four years old, her child was still unable to walk or talk because his neurodevelopment had been irreversibly impacted. Now in his thirties, he continues to face life with disabilities that could have been prevented.
Tuncak’s latest report is the fruit of 25 years of research under the human rights and toxics mandate that outlines 15 principles for States to end the exposure of workers to hazardous substances. These principles build upon the UN Guiding Principles on Business and Human Rights, ILO Conventions and multilateral environmental agreements on toxics.
The report’s recommendations were echoed in a resolution adopted at the 42nd session of the Human Rights Council. That resolution encourages States, businesses and other actors to implement Tuncak’s 15 principles through their legal and policy frameworks, as well as initiatives and programmes to strengthen the coherence between human rights and occupational health and safety standards.
The resolution also recognizes that States have a duty to prevent exposure to toxic substances, and businesses a corresponding responsibility.
Seven of Tuncak’s principles focus on prevention. “Every worker has the right to be protected from toxic exposures at work As illustrated in the case of Yvette, protecting workers from exposure to toxic substances has a ripple effect – it also protects their families, their communities and the environment,” the expert says.
“In exercising these duties and responsibilities, hazard elimination is paramount, and so too is protecting the integrity of the science on which decisions are made.”
Principles 8 to 11 are set on the interlinkages between the human right to safe and healthy work and workers’ right to information, participation and assembly. Tuncak stresses that “Every worker has the right to know, including to know the implications of exposure, the actions being taken to prevent exposure and their rights in relation to such exposure.”
He adds that, “workers find strength in numbers. The right to safe and healthy work is inseparable from the freedom of association, the right to organize and the right to collective bargaining.”
The final four principles address the right of workers to access an effective remedy. “Workers, their families and their communities must have immediate access to an appropriate and effective remedy, which should be available from the time of exposure.”
The Special Rapporteur points out, however, that for many victims the impacts or exposure are irreparable and irreversible. “The prevention of further exposure by workers is an essential element of a guarantee of non-repetition.” he says.
Tuncak further expresses his concern that employers still refuse to acknowledge safe and healthy work as a being human right, and that 50 years after its global recognition by the United Nations, it still is not one of ILO’s fundamental principles and rights at work.
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