Journal Review

Vanderbilt Journal of Transnational Law
Vol. 31;Number3:May 1998
[Full Article]

An American Law Journal on

"The most egregious violations include denials of food and medicine or medical supplies, especially for children," states Prof. Jordan J. Paust in an essay published in the Vanderbilt Journal of Transnational Law (May ’98).

The article, titled 'The Human Rights to Food, Medicine and Medical Supplies, and Freedom from Arbitrary and Inhuman Detention and Controls in Sri Lanka,' is highly critical of the Sri Lanka government's human rights record. It asserts, "…[these] denials also violate related prohibitions under the laws of war, and constitute serious war crimes."

In this 26 page article, Prof. Paust analyses the human rights violations in Sri Lanka under three headings: (1) the right to adequate food; (2) the right to adequate medicine; and (3) the right to freedom from arbitrary and inhumane detention and controls.

He cites several International Laws and Covenants, to support his inference that the government’s denial of these necessities constitutes War Crimes.

On the denial of food, he states, "There are several serious allegations and significant recognitions of the failure of the government of Sri Lanka and its officials, officers and agents to provide adequate and available food to populations in northern regions, including allegations that crops have been intentionally destroyed."

"There are also allegations that these failures are often deliberate: that the failure to provide adequate food is used as political tactic or weapon of war against noncombatants in the northern regions for various purposes. Such purposes allegedly include the intent to break down civilian support processes so that the civilians are forced to move to detention centers or government controlled areas; the intent to assure suffering, insecurity, and thus, instability in various regions; the intent to engage in punishments or reprisals against unsympathetic civilians."

Citing several International Covenants and Protocols, he states, "whatever the full contours and permeations of the right to food might be, it is clear that it constitutes a violation of the human rights law to deny adequate food to a given population. Moreover, it would be especially unlawful and egregious to deny the right to adequate food as government tactic to control certain persons or as a weapon of war."

Specifying Article 3 of the 1949 Geneva Conventions, he states, "starvation or a policy of denial and neglect involving starvation and malnutrition would violate the prohibition of ‘cruel treatment,’ and the duty to treat civilians ‘humanely.’ Further the actions would constitute ‘humiliating and degrading treatment’ of civilians forced to starve or suffer near starvation or malnutrition while also watching family members and friends fall victim to the same denial of rights. A violation of common Article 3 is not merely a violation, but also constitutes a war crime."[emphasis ours]

He also cites the 1919 List of War Crimes prepared by the ‘Responsibilities Commission of the Paris Peace Conference’ to declare that, "the deliberate starvation of civilians has already been recognized as a war crime," as far back as 1919.

Fear of food falling into the hands of enemy combatants is not an excuse for denying food to the civilians, he asserts.

"If food is likely to be used by both the general population and enemy combatants, the destruction or denial of food, in circumstances where one can reasonably foresee that the general population will suffer, will necessarily involve the indiscriminate use of food as a weapon."

He further argues, "starvation even of enemy combatants, seems necessarily inhumane because it involves unnecessary and lingering death and suffering."

Quoting the US State Department’s Country Reports (1997 & 1998) he sates, "within the 1997 Country Report, however, one finds a shocking confirmation of war crime policies and activities with respect to medicine and medical supplies… War crime policies are further documented in the 1998 Country Report…"

"More shocking is the [US State Department] recognition that, ‘the government refused to permit relief organizations to provide medical attention to wounded LTTE fighters."

"The government’s refusal of medical treatment of wounded insurgents is a violation of common Article 3… As the authoritative commentary by the International Committee of the Red Cross (ICRC) adds, the duty to respect and protect the wounded and sick is ‘a categorical imperative which cannot be restricted.’"

"Therefore, the intentional withholding of medicine and medical supplies from LTTE-controlled areas, as recognized by the State Department, is a clear violation of Article 3, and a war crime. This is true whether or not medicine and medical supplies were foreseeably destined solely for use by enemy combatants or enemy wounded and sick. Medicine and medical supplies are neutral and protected property in time of armed conflict and may not be withheld."

He also cites additional conventions and protocols to support this assertion.

Under this heading he discusses a number of subjects such as arbitrary arrests, reprisals and collective punishments, denial of the right to freedom of movement, censorship and denial of access, etc.

"Internment, as such, creates other responsibilities under Geneva Civilian Conventions… There are serious claims and significant recognitions that the government of Sri Lanka does not comply with these norms."

"Collective penalties and systematic terrorism are also among the customary prohibitions in the 1919 List of War Crimes… There are serious allegations and significant recognitions that both reprisals against and collective punishments of civilian persons have occurred in Sri Lanka."

"The 1997 Sri Lanka Country Report contains numerous statement and recognitions of related violations of human rights, including political and other extrajudicial killings and reprisals; disappearances; torture and other cruel, inhuman or degrading treatment or punishment; arbitrary arrest, detention, or exile; and denials of freedom of movement, travel and emigration."

"The pattern of behavior established by the government’s refusal to allow non-governmental and HRTF investigations, as well as the refusal to adequately investigate denials of human rights, coupled with evidence of government impunity, constitute circumstantial evidence of the policy of denial of rights noted in all three sections of this Essay. 

The essay is also critical of the US State Department’s report for its inadequacy in certain areas.

Prof. Paust concludes by stating,

"It is time for the international community to recognize that, in addition to medicine and medical supplies, food should always be treated as neutral property during an armed conflict. Because of highly predictable consequences, both short term and long term, food should never be used as a weapon of war. Moreover the international community should strive to assure that corridors for the free passage of food and medicine and medical supplies are negotiated or imposed during any armed conflict. For the children and others who suffer, criminal and civil sanctions are inadequate and come too late, if at all."

Courtesy: Vanderbilt Journal of Transnational Law
Vol. 31;Number3:May 1998

Professor Paust is the Law Foundation Professor at the University of Houston and Co-chair of the International Criminal Law Interest Group and the American Society of the International Law.