(C) Common Dreams
This story was originally published by Common Dreams and is unaltered.
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Siege Starvation: A War Crime of Societal Torture [1]
['Tom Dannenbaum']
Date: 2025-08
Table of Contents
I. Introduction
II. The Starvation Crime and Interpretive Controversy
A. The Legal Context
B. Interpretive Ambiguity and Controversy
III. Necessity and Normativity: Framing the Argument
A. The Purported Necessity of Comprehensive Encirclement Starvation
B. A Valid Empirical Premise?
C. Necessity, Humanity, and Categorical Prohibitions
D. The Normative Posture of International Criminal Law
E. Precision in Specifying the Meaning of a Crime
F. Categories of Criminal Wrongdoing in War
IV. Starvation as a Form of Attack on Civilians
A. The Distinct Role of the Starvation Crime Among Attacks on Civilians
B. Necessity Revisited: Graduality and Civilian Harm
V. Torture, Necessity, and the War Between Biology and Self
A. Necessity in the Torture Debates
B. The Wrongfulness of Torture
C. Connecting the Moral Theory of Torture with the Law
VI. Siege Starvation as Societal Torture
A. Control and Power
B. The Distortion of Biological Imperatives Against Political Commitments in Mass Starvation
C. The Distortion of Biological Imperatives Against Social Bonds in Mass Starvation
D. Moral Dimensions and Being Turned Against One’s Higher‑Order Commitments
E. The Distinctive Wrong of Mass Starvation
VII. Resituating Starvation in International Criminal Law
A. A Genus of Crimes Involving the Distortion of Biological Imperatives
B. The Multifaceted Nature of the Starvation Wrong and the Interpretive Significance of the Torturous Element
C. Overlapping Crimes and Cumulative Convictions
D. Starvation Beyond Conflict
VIII. Conclusion
In 2019, the 123 States Parties to the International Criminal Court (ICC) approved a statutory amendment incorporating the war crime of starvation of civilians as a method of warfare in non-international armed conflicts (NIACs).[1] The new provision marks the first step towards closing a consequential gap in the ICC system.[2] Prior to the amendment, the Rome Statute had criminalized the practice only in international armed conflicts (IACs)—the decidedly less common of the two categories of contemporary war.[3]
The change comes at a moment when the infliction of mass starvation in war is resurgent.[4] Millions of civilians across multiple conflicts have suffered severe deprivation,[5] often in ways that are attributable directly to the strategies of the belligerent parties.[6] Isolated by a Saudi- and Emirati-led blockade on one side and subject to the confiscation of food and medicine by the Houthis on the other, the people of Yemen have endured years of what remains one of the world’s gravest humanitarian crises.[7] In Myanmar, the destruction, pillage, and denial of food and other essentials have been key components of the military’s counterinsurgency strategy, contributing to the ethnic cleansing and alleged genocide of the Rohingya population.[8] In 2020, almost half of the population of South Sudan was in “crisis” or worse due to food deprivation arising in significant part from the actions of the warring parties.[9] The Independent International Commission of Inquiry on Syria has described “modern day sieges in which perpetrators deliberately starved the population along medieval scripts,” imposing “indefensible and shameful restrictions on humanitarian aid.”[10] Most recently, Ethiopian and Eritrean belligerents have used a range of starvation tactics in Tigray in what has quickly become one of the world’s most severe humanitarian catastrophes.[11]
It is in this context that the starvation crime will take shape. The agreement on the new ICC provision was preceded by a landmark resolution in which the U.N. Security Council “strongly condemn[ed]” starvation methods in armed conflict and warned that they “may constitute a war crime.”[12] There is now an unprecedented level of attention among academics and practitioners on a criminal prohibition that had been dormant and largely ignored since its first treaty codification (in IAC form) in 1998.[13]
And yet, much remains uncertain. In light of the IAC crime’s dormancy and the NIAC crime’s recency, there is not the case law or broader jurisprudence that might help to settle incipient, but consequential interpretive disputes.[14] Particularly thorny are questions around intent and purpose. Views differ as to whether the crime would attach to the act of blocking the delivery of essentials, such as food and water, to an encircled and starving population when that obstruction is performed with the goal of starving out ensconced enemy forces.[15] On one view, for the crime to attach, it would need to be established that the besieging party acted with a view to weaponizing the attendant civilian suffering. On an alternative view, engaging in deprivation with the knowledge that it would cause civilians to starve would suffice. These views diverge significantly in terms of both the range of operations to which the crime might attach and the subset for which prosecution would be viable from an evidentiary perspective.
But confusion is not confined to questions of interpretation. Underpinning those disputes lies a deeper lack of normative clarity as to what the starvation crime is really about. Those who assert a narrow definition of the legal prohibition tend to invoke military necessity as an underlying principle of international humanitarian law (IHL) and the guiding norm in this instance.[16] Siege, they argue, is an essential tool of warcraft and cannot be performed effectively without the complete sequestration of the entire encircled population. Whatever one makes of the empirical assumptions embedded in that claim, it raises further normative questions. The invocation of necessity is compelling only if the pro tanto wrong associated with inflicting starvation conditions on civilians is of a kind that is amenable to a necessity justification in the first place. Whether it is depends in part on what makes starving civilians as a method of warfare criminally wrongful.[17]
A potent normative account of the starvation crime would explain not just why the conduct is condemnable, but why it warrants a criminal prohibition separate and distinct from other potentially applicable war crimes or crimes against humanity, such as attacking civilians, murder, extermination, forced displacement, or willfully causing great suffering or serious injury to body or health.[18] Distilling that normative core is important both for honing international criminal law’s message in starvation cases and for clarifying what is at stake in interpretive disputes regarding the scope of the crime.[19]
With that in mind, this Article analyzes criminality in the context of siege starvation—the encircling and cutting off of a defended and populated locality in order to elicit the capitulation of the besieged party and thereby avoid the need to take the area by assault.[20] To focus on this specific form of the method is neither to ignore other modalities of starvation warfare, [21] nor to dismiss the use of mass starvation to punish, subjugate, or exterminate.[22] It is instead to respond to the status of encirclement deprivation as both the quintessential form of starvation as a method of warfare—prevalent historically[23] and today[24]—and the form most likely to be defended, legally and morally.[25] With sieges arguably becoming “a defining feature of modern warfare,”[26] encirclement deprivation is the form most capable of shedding light on the normative underpinnings of the starvation crime.
The most straightforward way of thinking about starving civilians as a method of warfare is as a specific instantiation of the broader criminal category of attacks on civilians. Indeed, this appears to be the standard view of the crime.[27] Although recognizing the distinctive features of starvation, this conceptualization identifies the method’s wrongfulness as inhering fundamentally in it being an attack on those who ought not be attacked.
This way of understanding the crime can be taken in divergent interpretive directions. On the one hand, it might be thought to underpin a categorical prohibition of encirclement starvation on the analogical basis that it would be prohibited to subject an identical besieged population to kinetic attack without discriminating between its civilian and combatant constituencies.[28] On the other hand, some might single starvation out among attacks on civilians on the grounds that its slow and incremental nature allows for civilian harm to be avoided or minimized in a way that kinetic attacks preclude.[29] That, in turn, might be thought to open the door to the justificatory invocation of necessity, particularly in contexts in which civilians would not be the specific targets of the operation.
Whatever one makes of those divergent lines of reasoning, the central claim of this Article is that their shared normative premise is incomplete. Plainly, the fact that criminal starvation methods can be characterized as harmful and lethal attacks on civilians is an important aspect of their criminality. However, that framing risks obscuring an additional dimension of the wrong—one that is particularly potent in explaining the independent criminalization of starvation methods and in clarifying the normative implications of the method’s graduality. This dimension is best illuminated by way of a societal analogy to torture. [30]
Both torture and encirclement starvation involve the infliction of suffering (and potentially death). However, the feature that sets these crimes apart from the other legal categories under which they could be prosecuted is the way that these methods turn victims’ biological imperatives against their fundamental capacities to formulate and act on higher-order desires, political commitments, and even love.[31] The process is not simply coercive; the distortion of biological imperatives does not merely raise the cost of fulfilling higher-order commitments. Instead, it slowly crowds out the capacity of victims to decide whether to do so.
Seen in this way, the graduality of starvation, as compared to other forms of attack, is not a mitigating factor that opens the possibility of harm minimization and thus permissibility. Rather, it is central to the distinctively torturous wrong that defines the method. Starvation tears gradually at the capacity of those affected to prioritize their most fundamental commitments, regardless of whether they would choose to do so under the conditions necessary to evaluate matters with a “contemplative attitude.”[32] This process works only through the incremental and sustained accumulation of suffering and the imperative to break free from it.
In advancing this theory of the crime, the Article proceeds as follows. Section II provides a brief outline of the legal framework and some of the key doctrinal debates regarding the scope of the crime. Section III identifies the normative role of military necessity in underpinning arguments for a narrow prohibition, emphasizes the need to consider necessity in light of the moral stakes of the conduct in question, and situates that endeavor within a theory of international criminal law as an expressive regime. Section IV elaborates what appears to be both the standard account of the wrong underpinning the starvation crime and the account assumed by those who argue for its narrow scope on necessity grounds. Section V considers the relevance of the moral philosophy of torture in illuminating its criminal wrongfulness and responding to the use of necessity by torture advocates. Section VI draws on that philosophical insight to offer a normative account of starvation of civilians as a method of warfare, framing it as a war crime of societal torture. Section VII situates that insight in the framework of international criminal law as a whole.
Starvation of civilians as a method of warfare is a relative latecomer to international criminal law. The innovative charge of “[d]eliberate starvation of civilians” was considered fleetingly when the Allies were planning to prosecute their defeated foes after World War I,[33] but international prosecution efforts collapsed, and the crime was never established.[34] Two and a half decades later, senior Nazi defendants were convicted at Nuremberg of starving prisoners of war, occupied populations, the enslaved, and others under their control.[35] However, starvation in the conduct of hostilities was treated quite differently. Members of the German High Command were acquitted of any legal violation arising from the siege of Leningrad, in which over one million Russians died.[36] The American‑run tribunal hearing the case affirmed the legal “propriety of attempting to reduce [a place controlled by the enemy to] starvation,” holding that “the cutting off of every source of sustenance from without” in such a context was fully compatible with existing international law.[37] It was a tactic the Allies had used themselves.[38]
Soon thereafter, international humanitarian law (IHL) underwent a significant revision. However, except in the narrow context of belligerent occupation,[39] the Geneva Conventions of 1949 retained a permissive posture towards starvation tactics.[40] They require that parties allow “essential foodstuffs” through to adversary territory only when those consignments are “intended for children under fifteen, expectant mothers and maternity cases” and the besieging party has no “serious reasons for fearing” that they may be diverted, controlled ineffectively, or provide a “definite advantage” to the adversary by substituting for goods that it would have provided.[41] In the context of siege warfare, parties are required only to “endeavour to conclude local agreements” for the removal of “wounded, sick, infirm, and aged persons, children and maternity cases”; there is no requirement to succeed in those endeavors, no requirement to allow persons in the protected categories out in the absence of an agreement, and no requirement to even try to conclude agreements allowing other civilians to exit.[42] The notion that starvation methods could qualify as a war crime remained a long way off.[43]
It was not until the Additional Protocols were agreed in 1977 that this began to change. Both Protocol I (for IACs) and Protocol II (for NIACs) proscribe “starvation of civilians as a method of warfare [or combat].”[44] The more detailed Protocol I rule elaborates that it is prohibited to “destroy, remove or render useless objects indispensable to the survival of the civilian population. . . . for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party.”[45] It clarifies that such deprivation is permissible for the denial of sustenance if the objects are used solely by the armed forces of the adversary and is permissible if done for reasons other than sustenance and the action would not lead to civilian starvation or forced movement.[46] A separate provision specifies that if the civilian population in non‑occupied territory is inadequately supplied, “relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.”[47]
The introduction of these rules shifted the law’s posture on starvation in war. At the same time, the ban was excluded from the grave breaches provision of Protocol I.[48] As such, it remained a step removed from war crime status. It took two more decades for the criminality of the method to be codified in an international instrument. Article 8(2)(b)(xxv) of the Rome Statute proscribes “[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.”[49] An equivalent provision for NIACs was deleted late in the drafting process in what, remarkably, appears to have been an administrative error.[50] Given the prevalence of the non‑international form of armed conflict, this was a significant omission. A further twenty years passed before it was remedied by amendment.[51]
The ICC, of course, is limited in its reach. Absent Security Council referral or ad hoc state acceptance,[52] the Court’s jurisdiction is restricted to crimes on the territory, or perpetrated by a national, of one of the 123 States Parties.[53] Under current political conditions, this alone precludes ICC action in many of the current or recent conflicts involving mass starvation.[54] Moreover, pursuant to the Statute’s onerous amendment process, the new NIAC provision will enter into force only for States Parties that choose to ratify it.[55] As such, allegations of the use of starvation methods in the NIACs in Nigeria and Mali (both of which are ICC States Parties) remain beyond the Court’s jurisdiction even after the amendment’s incorporation into the Statute.[56]
However, the implications of starvation’s criminalization in the Rome Statute are not defined by the jurisdictional and political limits of the ICC. Despite the Court’s difficulties, the Statute remains the normative focal point of international criminal law.[57] The 1998 codification alone had a catalytic legislative effect. Many states quickly replicated the Rome Statute’s list of international crimes in their domestic penal codes, which often provide for universal or extended jurisdiction.[58] Hybrid, special, and regional tribunals have also drawn on the Rome Statute for their lists of crimes.[59] As a result, the starvation crime is now available in a range of jurisdictions not bound by the specific constraints of the ICC.
Some of these states and authorities followed the initial Rome Statute focus on starvation in the IAC context. However, others, including the Malabo Protocol for the African Court of Justice and Human Rights, have incorporated the war crime for both conflict classifications.[60] In those that restricted jurisdiction to the IAC crime, the recent amendment to the Rome Statute can be expected to have a catalytic effect on legislative expansion to cover NIAC starvation crimes. Similarly, hybrid, special, and regional tribunals created post-2019 are now more likely to include the starvation crime for both IACs and NIACs.[61]
The fact of the Rome Statute amendment can also help to amplify political and civil society scrutiny of starvation in war. As just one element of the unprecedented treaty agreed in Rome in 1998, the initial IAC provision was quickly forgotten and has rarely been invoked. The 2019 amendment, on the other hand, has been incorporated at a time when the practice of starvation in war is resurgent and has drawn the attention of a wide range of actors, from civil society groups to the Security Council.[62] The new amendment has already been invoked in key expert reports regarding ongoing conflicts.[63] As the legal and political implications of the starvation war crime develop further, much will turn on how the prohibition is understood and used.
Perhaps the most consequential question in interpreting the crime is how to think about intent, purpose, and method in the deprivation of objects that sustain both combatants and civilians.[64] Divergent views on that question have profound implications for whether and under what conditions siege warfare can be waged without implicating international criminal law.
At one end of the spectrum, the crime is understood to attach only to acts that seek to weaponize the civilian suffering associated with starvation. Advocates of this view emphasize the Rome Statute language specifying that to perpetrate the crime is to “[i]ntentionally us[e]” the starvation of civilians as a “method of warfare.”[65] The term “method” alone suggests deliberate, purposive action; that the method in question must be used “intentionally” only bolsters that implication.[66] As such, for civilian starvation to be used intentionally as the method by which to advance the war effort, it must be inflicted purposefully with a view to its weaponization. Or so the thinking goes
On such an interpretation, much of the starvation of civilians in war might appear to be beyond the scope of the criminal prohibition. Most obviously, acts pursued with a view to weakening or weaponizing the suffering of combatants could be argued to fall outside the scope of the crime, even when they also cause widespread civilian deprivation, as is likely in a comprehensive starvation siege.[67] As long as the “surrender or starve”[68] message of the siege is directed at combatants, the fact that civilians will also starve would not itself be sufficient for the war crime to attach. Offering civilians safe egress might be thought to emphasize this distinction by indicating that the starvation of those who remain is regretted, rather than weaponized.[69] Understood in that way, the ensuing civilian suffering is analogous to the civilian loss occurring as the collateral damage of an attack on a legitimate military objective. Although potentially subject to the IHL rules of proportionality and precaution, this civilian suffering would not be prohibited by the starvation rule, and it would certainly not qualify as the criminal form of starvation of civilians.[70]
This argument tends to be made most forcefully in contexts of encirclement deprivation.[71] There is a doctrinal reason for this: Article 54 of Additional Protocol I is more clearly expansive in its prohibition of the destruction, removal, or rendering useless of indispensable objects than it is with respect to the impeding of such objects’ delivery to an encircled area.[72] However, the focus on encirclement deprivation in arguments seeking to limit the scope of the starvation ban also reflects a normative determination that sieges involve a particularly acute military imperative to engage in comprehensive and indiscriminate starvation. This necessity claim is central to the question of how to think about the normative underpinnings of the crime. It is addressed in the next Section.
Focusing on the text of the criminal prohibition, others are not persuaded by the purposive characterization of what is proscribed. For them, “method of warfare” has no settled definition in IHL,[73] and is understood most plausibly to do “no more than describe conduct that is part of hostilities.”[74] Moreover, the specification that starvation of civilians be used “intentionally” ought to be understood in accordance with the default mens rea standards in Article 30 of the Rome Statute,[75] which specify that a person should be understood to have “intent” with respect to a criminal consequence when that “person means to cause that consequence or is aware that it will occur in the ordinary course of events.”[76] The threshold for the latter (oblique) form of intent has been defined in ICC jurisprudence as being satisfied when the perpetrator acted with a “virtual certainty” that the result would occur.[77] Using starvation methods on an encircled population with a view to starving out combatants could meet this threshold, because such a technique would entail knowingly starving civilians, even assuming no desire to weaponize their suffering. Although Article 30 does not apply technically to the use of “intentionally” in the starvation provisions, the latter can be read in its light.[78]
A further line of argument in favor of a broad prohibition focuses on the meaning of “starvation of civilians as a method of warfare.”[79] The central objective element of the ICC crime is that civilians are deprived of objects indispensable to their survival, not that they die or suffer any particular harm as a result.[80] Moreover, paragraphs 2–3 of Article 54 of Protocol I (the IHL rule underpinning the war crime) proscribe both engaging in such deprivation actions with a view to denying sustenance to the adverse party (as long as civilians will also be affected) and engaging in such deprivation actions for any other reasons when doing so would cause civilian starvation or force civilians to move.[81]
Understanding the war crime in that context, “intentionally using starvation of civilians as a method of warfare” can be read transitively[82] to refer to the practice of denying civilians sustenance, rather than that of seeking to weaponize the harm they suffer as a result. On this reading, the crime would include the actions of belligerents who engage deliberately in the deprivation of objects indispensable to civilian survival even if they do so without the goal of harming civilians.
In fact, recognizing the starvation method to inhere in the act of deprivation, rather than the weaponization of suffering, has implications even assuming that civilians must be targeted with deprivation for the crime to attach. A civilian population does not lose its civilian character due to the presence of combatants within it.[83] When belligerents deprive an encircled population of essentials in order to starve out the combatants ensconced within, they target the civilian population with deprivation as a necessary predicate to starving those enemy fighters. Similarly, operations targeted at civilians and combatants without discrimination have been understood to be operations targeted at civilians at the same time as they are operations targeted at combatants. [84]
There is much more to be said doctrinally on both sides of this interpretive debate.[85] However, the elements above identify some of the key points of disagreement. The implications are significant. On the narrow view of the prohibition, it would be rare for a siege to meet the threshold for starvation of civilians as a method of warfare. On the broader interpretation, a siege that involved depriving the encircled population of essential goods would almost certainly satisfy the threshold, unless the population were composed predominantly of combatants or persons directly participating in hostilities. It is not the project of this Article to resolve that doctrinal dispute. However, the debate spotlights a more fundamental tension regarding how to understand the moral stakes of the prohibition.
The central normative claim underpinning objections to a broad and categorical prohibition of encirclement deprivation is that such a rule is insufficiently attentive to the military imperatives that motivate siege warfare. The thesis arising from this argument can take one of two forms. One is internal to the law. In that line of thought, military necessity is invoked as an underlying principle of IHL that demands a narrow interpretation of the rules codified in the Protocols, of their customary analogues, and therefore of the derivative war crime provisions in the Rome Statute and elsewhere. On this view, existing law should be interpreted to minimize the constraints on encirclement starvation. A second approach critiques the law from the external point of view. From that perspective, the current legal rule is correctly interpreted as broadly prohibitive of encirclement deprivation, but states would do well to refrain from ratifying treaties that include the rule and to resist its customary crystallization on the grounds that the rule ignores relevant military imperatives.
The important point at this stage is that these divergent perspectives on the law as it stands share a common normative posture. After detailing that shared underpinning, this Section contends that neither of these positions can be evaluated without reference to the countervailing moral interest at stake in the starvation ban. It is only through identifying the pro tanto wrong associated with starvation methods that we can begin to think through whether and when necessity might justify them.
The empirical claim underpinning each of the necessity arguments is simple. Facing a populated and well-defended locality, the imposition of comprehensive restrictions on what goes in is often deemed the most promising route by which a belligerent might take that locality and defeat the forces that hold it. Most obviously, that method allows the besieging force to coerce capitulation, rather than engaging in the significantly more militarily demanding alternative of trying to take the area by assault.[86] Even when some form of assault is required, the siege can be expected to weaken the enemy sufficiently to reduce the difficulty of such an operation. Thus, despite decrying the “surrender or starve” tactics of siege warfare as “disastrous for civilians,” the U.N. Independent International Commission of Inquiry on Syria recognized the method as having been “successful for overtaking opposition-held territory” in the conflict.[87] In the naval context, Wolff Heintschel von Heinegg asserts, “blockade remains a most efficient method for subduing the enemy.”[88]
Crucially, on at least some accounts, the efficacy of this method is contingent on the total isolation of the besieged force.[89] From that perspective, if a siege is to work, those within the encircled locality must be cut off completely.[90] Anything short of comprehensive sequestration, including from humanitarian aid and other essentials, would give the adversary the lifeline necessary to sustain its defensive posture, potentially extending the siege indefinitely and precluding a decisive victory.[91] And it is in that respect that the starvation of civilians comes into the picture. Ordinarily, the very fact of encirclement indicates that the besieging party lacks granular control over what happens within the encircled area.[92] As such, it is impossible for that party to determine in advance whether food or other essential consignments allowed through would sustain civilians, enemy combatants, or both.[93] Therefore, if the enemy forces must be isolated for the method to work, so too must be the civilian population within which they are ensconced.
From the method’s efficacy, it is claimed, follows a military imperative. “Very often,” Sean Watts argues, “you do not have a choice, you do not have the forces you need to undertake an assault of a city, or the weapon system that you would need to overcome the defenders.”[94] Cutting them off and weakening them to the point of capitulation or maximal vulnerability would seem to offer the most (and possibly the only) viable path forward.
The thesis that much encirclement deprivation either is or ought to be permissible is built on this empirical premise. Responding to those who might question why civilian deaths can be inflicted by encirclement in ways that would be prohibited if they were achieved by kinetic attack, Michael Walzer reasons, “[t]he obvious answer is simply that the capture of cities is often an important military objective . . . and frontal assault failing, the siege is the only remaining means to success.”[95]
As indicated above, some take the necessity of encirclement deprivation in such contexts to expose a serious flaw in the law’s categorical prohibition on starvation of civilians as a method of warfare. Along these lines, Yoram Dinstein has condemned Article 54 of Protocol I, describing its posture on siege warfare as “untenable in practice” because it blocks a viable path to military success, when “no other method of warfare has been devised to bring about the capture of a defended town.”[96] That untenability might be invoked as a reason for declining to ratify the relevant treaties,[97] ratifying with a reservation,[98] or resisting claims that the rule has gained customary status.[99]
For others, the existing rules are more open to interpretation than Dinstein allows. From that perspective, military necessity demands a narrow interpretation of the legal prohibitions, particularly in the context of encirclement warfare. Thus, Watts decries “operationally troubling”[100] efforts to require besieging parties to permit the passage of humanitarian relief to avert civilian starvation, describing that understanding of existing law as driven by a myopic “resort to humanitarian objects or purposes, without equal attention to military necessity.”[101] For him, such interpretations fail to take seriously the possibility that “permissive rules for withholding consent to relief actions reflect not inadequacies but rather the presently-operative balance between humanity and military necessity.”[102]
Similarly, Matthew Waxman centers military necessity as the foundation of what he believes to be the law’s permissive posture on the issue, arguing:
siege methods have long been given leniency in customary law because they were seen as the only viable means of securing certain military objectives. . . . [Therefore,] [t]he international community expressed a reluctance, even among the strongest condemners of Serb practices [in the sieges of Sarajevo and Srebrenica in the 1990s], to accept the wholesale rejection of siege as a legitimate instrument. [103]
Along the same lines, Françoise Hampson contends, “[i]f well-meaning humanitarians argue that the applicable rules mean that you cannot conduct sieges lawfully, that does not mean that sieges will not happen. Rather, it means that sieges will happen unlawfully or outside the framework of law.”[104] The upshot, in her view, is simple: “sieges are occasionally necessary, and being necessary, it is up to the law to accommodate them.”[105] Thus, in evaluating the siege of Sarajevo, a U.N. Commission of Experts found itself “faced with the unpalatable fact that, unless there is a neutral arbiter, the only way to starve-out a besieged military force, a legitimate act of war, is to starve the civilian population.”[106] Given that “the intermingling of military forces and the civilian population” precluded discriminating in the deprivation methods, the Commission found the criminality of the siege of Sarajevo to be “debatable.”[107]
One line of response to such arguments is to challenge the claim that starvation methods are necessary to overcome well-defended and populated areas. Along these lines, one might question the binary framing according to which the only paths forward are all-out military assault or comprehensive encirclement starvation.[108] A siege or blockade that interdicts contraband[109] but preserves an effective channel for the supply of goods essential to human survival[110] can be an effective way to contain enemy forces within the encircled area, to undermine their capacity to launch an offensive from that location, and to preclude their deployment elsewhere.[111] Under the right circumstances, this can be combined with targeted attacks on specific military objectives to degrade the contained force. On this view, one can affirm the utility of a form of siege warfare, and yet insist that “[s]ieges must still allow for vital foodstuffs and other essential supplies to be delivered to the civilian population.”[112]
Challenging the premise from a different angle, it has been argued that subjecting a heavily populated area to encirclement starvation often fails to precipitate capitulation, serving instead simply to strengthen the hand of the besieged force vis-à-vis the severely impacted civilian population.[113] Additionally, it might be argued that when sieges do succeed in dislodging the adversary, this is because the process of encirclement deprivation is supplemented with the use of “overwhelming” or “indiscriminate” force. [114]
Objections along these lines go to the empirical keystone of the necessity argument. If alternative (and less destructive) methods are available, it would be misleading to characterize comprehensive siege starvation as militarily essential. Conversely, if encirclement deprivation is largely ineffective or counterproductive, the necessity claim is simply untenable. And if the method works only in contexts in which it is combined with actions that either render it superfluous or implicate the besieging party in clear war crimes, its potential efficacy is not justificatory.
However, resolving the question of the efficacy of siege warfare is not the project of this Article. For even assuming encirclement starvation can be effective, it does not follow that it must be permissible as a matter of legal interpretation or that it should be permissible as a matter of lex ferenda. The normative relevance of military necessity depends on a theory of the pro tanto wrong associated with the starvation of civilians. It depends, in other words, on a normative account of the crime.
Contemporary IHL and the associated war crimes regime have at their core a series of categorical prohibitions that hold irrespective of the potential military advantage associated with their violation. In contrast to the authorizing role of the necessity concept in earlier iterations of the regime, [115] “the idea today that military necessity may justify deviation from the LOAC [law of armed conflict] cannot be taken as a serious argument.” [116]
This is a legal reality with significant operational implications. Under the right conditions, one party to a conflict may stand to gain militarily by attacking the enemy’s civilian population to coerce their political leaders into withdrawal or capitulation.[117] In some cases, doing so may be the only plausible route to achieving their ultimate objectives in the conflict. And yet, from the legal point of view, this imperative is irrelevant. The targeting of civilians who are not participating directly in hostilities is categorically prohibited and criminal, irrespective of military necessity.[118] The arguments offered in defense of Allied “terror bombing” in World War II are simply unavailable within the normative framework enshrined in law today.[119] Similarly, belligerents may not employ weapons that cannot be directed at a specific military objective, even if those are the most militarily effective weapons available to them in a context of urban warfare.[120] Those who use such weapons in that context engage in war crimes.[121]
The insufficiency of military necessity as the basis for legal permission is equally clear in the context of capture and detention. It is straightforwardly unlawful and criminal to kill enemy belligerents who have been captured and therefore rendered hors de combat, even if their capture occurs behind enemy lines and taking the prisoners in tow would thwart the mission of the capturing force.[122] In such contexts, the capturing party must either release or detain, regardless of whether such options would be compatible with the goals of its operation.[123] Similarly, if a detaining authority is unable to provide prisoners of war with adequate nutrition and is unable to ensure that standard via other means (such as external assistance), it must release and repatriate the affected prisoners. [124]
More prominently, and as discussed in greater detail below, efforts to justify torture on necessity grounds have, with rare and highly controversial exceptions, failed to gain legal acceptance.[125] The rejection of pro-torture arguments has not relied exclusively on the empirical counterpoint that the practice is ineffective as a method of eliciting information.[126] On the contrary, it has been maintained even in contexts in which efficacy is assumed. In that vein, Judge Aharon Barak wrote on behalf of the Israeli Supreme Court that a law-abiding state (or, in his framing, a democracy) “must sometimes fight with one hand tied behind its back.”[127] Although the decision in which that claim is embedded has been critiqued persuasively as having the practical effect of legitimating, rather than constraining, detainee mistreatment,[128] Barak was correct that compliance with the law of armed conflict does not guarantee the availability of all militarily advantageous methods.
Just as the military utility of a particular method is insufficient to justify deviation from a clear legal prohibition, that utility cannot be invoked in isolation to resolve ambiguities within the law of armed conflict. The status of military necessity as an underlying normative principle of the regime is itself contested.[129] Moreover, even those who assume that military necessity does indeed perform such a function accept that it operates in productive tension with the often‑countervailing principle of humanity.[130] Identifying that tension as the normative underpinning of the regime precludes the unchecked interpretive dominance of the former no less than it precludes the unchecked interpretive dominance of the latter. [131] Thus, even for those who assume that the law of armed conflict is best understood as seeking to accommodate “states’ interest in pursuing the object of war,” it is crucial “to avoid the misunderstanding that the LOAC generally, and military necessity in particular, justifies the unencumbered pursuit of war aims.”[132]
Waxman acknowledges that arguments for the permissibility of siege starvation are rooted fundamentally in “similar reasons” to those underpinning purported justifications of indiscriminate bombing in World War II and the Vietnam War.[133] This is telling. Indiscriminate attacks and attacks on civilian populations have been prohibited despite their potential military utility.[134] Analogously, it is entirely possible that “[t]o the extent the rules [on starvation and humanitarian access] complicate the conduct of military operations, such complication is amply warranted by the crucial concerns of humanity served by provision of relief to civilian populations in need.”[135] Whether that impediment to military efficacy is indeed warranted on those grounds depends in significant part on what is morally at stake in the starvation of civilians.
Ultimately, whatever one’s view on the general theory that IHL represents a balance between the imperatives of necessity and humanity, the categorical nature of at least some of the IHL prohibitions discussed above reflects a determination that the associated moral imperatives hold even in the face of significant military or other utility. International human rights law accepts the limitation of rights in pursuit of certain “legitimate aims” only as long as that limitation does not put the right itself in jeopardy.[136] Along similar lines, IHL’s categorical proscriptions might be understood as efforts to protect core rights that cannot be sacrificed or jeopardized, even in the service of a war effort. Certainly, the absolute prohibitions on torturing or executing detainees may appropriately be understood in these terms.[137] Determining whether something similar might be true of starvation as a method of warfare requires getting to grips with the normative underpinnings of the prohibition.[138] It requires asking what, precisely, is criminally wrongful about engaging in the starvation of civilians as a method of warfare.
To ask what is criminally wrongful about a particular violation is to take seriously the notion that designating that violation a war crime entails a moral claim about the wrongfulness of the underlying conduct. [139] Arguably, this idea underpins criminal law generally. As Anthony Duff puts it:
What is distinctive about criminal law is that it inflicts not just penalties, but punishments—impositions that convey a message of censure or condemnation; the convictions that precede punishment are not mere neutral findings of fact, that this defendant breached this legal rule, but normative judgments that this defendant committed a culpable wrong.[140]
It is now widely asserted that one of international criminal law’s core functions is to give voice to certain moral values and condemn their violation.[141] That function is manifest most clearly in the punishment of those who commit war crimes, crimes against humanity, or genocide while acting in their home territory, pursuant to clear domestic legal authorization (and even obligation), against their co-citizens.[142] Overriding the primary coordinative legal framework (domestic law) in a context in which there is no need to coordinate between that framework and another framework with equal sovereign authority cannot be understood with reference to the coordinating function of law. International criminal law’s requirement that any perpetrator who has a “moral choice” is dutybound to disobey such domestic laws manifests a substantive view about right and wrong.[143]
The institutional agents of international criminal law have long been conscious of its normative posture. In his opening statement before the first major international criminal tribunal, chief American prosecutor at Nuremberg Robert Jackson argued, “When I say that we do not ask for convictions unless we prove crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong.”[144] Decades later, amidst the revival of international criminal law, the International Criminal Tribunal for the former Yugoslavia emphasized its role in issuing “public reprobation” through punishment.[145] The ICC has described its sentencing of convicted perpetrators as “an expression of the international community’s condemnation”[146] and refers frequently to perpetrators’ “moral blameworthiness” [147] and “cruelty” in sentencing.[148]
To recognize the moral expression inherent in international criminalization and punishment is not to deny the ways in which political factors shape the articulation of the expressivist mission and the way it is pursued.[149] Notwithstanding Jackson’s lofty rhetoric, the tribunal before which he delivered that speech was normatively defective because it lacked the jurisdiction to examine crimes committed by the Allies.[150] Although the tribunals that have been created since have not been quite as explicit in their selectivity or partiality, power remains a crucial factor in the distribution of criminal justice, and victors’ justice critiques (or close equivalents) endure.[151]
That political context raises real challenges for the legitimacy of the application of international criminal law. However, it does not contradict the fact of a moral assertion at the heart of the regime. On the contrary, that condemnation is central to what stakeholders seek to control and harness to their political ends.[152] Moreover, critiques that point to the specific political conditions of any given court’s activity as precluding the moral standing necessary for defensible condemnation are meaningful precisely because condemning is what such institutions do.[153]
If punishment amounts to a particular form of moral expression, it is important to all stakeholders that the message inherent in any given criminal prohibition can be identified. Accused persons face the prospect of being followed by the “symbolic and condemnatory” implications of the specific crimes of which they are convicted.[154] Conversely, the law’s capacity to express solidarity with victims is contingent on the relevant criminal categories capturing the wrong they suffered in a morally intelligible way. [155] Meaning matters also to the broader communities affected or implicated and to legal and institutional actors seeking to operate consistently within the system.[156]
It is in this context that the “fair labeling” principle—the requirement that “widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law”[157]—is gaining purchase as a human rights imperative.[158] It is connected through the principle of legality to the idea of “fair warning,” pursuant to which “citizens should be advised [in advance] as to how their conduct will be censured.”[159] It must be possible for those to whom, and on behalf of whom, the law speaks to “discern the criminal law’s designation of [the] wrong [associated with each crime] as distinct and deserving of its own condemnation.”[160]
If anything, the stakes associated with this principle are magnified in international criminal law, where verdicts are of profound political significance to large constituencies, and the crimes are thought to carry an elevated stigma. [161] Mirjan Damaška emphasizes the importance of ensuring that distinctions in this domain rest not on legal technicality, but on “moral distinctions shared by ordinary people.” [162]
The significance of moral meaning in international criminal law is exemplified by the intensity of feeling regarding whether acts that clearly qualify as crimes against humanity also constitute genocide.[163] This distinction was central to the public discourse around several International Criminal Tribunal for the Former Yugoslavia (ICTY) judgments on the status of persecutory violence at Srebrenica (where genocide was affirmed) and in other Bosnian municipalities (where it was not). [164] The issue provoked a diplomatic fracas at the Security Council over a symbolic resolution commemorating the Srebrenica genocide.[165] The genocidal status of clear crimes against humanity has also been a point of debate with respect to the Khmer Rouge atrocities prosecuted before the Extraordinary Chambers in the Courts of Cambodia.[166]
In none of those instances was criminal liability for the impugned acts ultimately at stake—the crimes against humanity convictions were straightforward and often overdetermined.[167] Equally, the different possible verdict combinations portended no formal penalty differential,[168] and the sentences, in at least some of the cases, were anyway fairly certain to be longer than the defendants’ remaining life expectancy.[169] At stake was simply whether the court would identify the attacks as distinctively genocidal in their wrongfulness. Even when a de facto life sentence is guaranteed, the question of expressive classification remains of enormous importance to stakeholders across the spectrum.
Genocide’s unique status in the popular imagination is such that debates as to its applicability tend to take on a heightened public profile.[170] But other examples pervade the practice of international criminal law, including on issues such as modes of liability.[171] In the area of gender-based and sexual violence, the codification of crimes has developed over time to encompass a broad range of specific offenses, including not only outrages upon personal dignity and rape, but also sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.[172] In the first international conviction for the crime against humanity of forced pregnancy, the ICC acknowledged the position of some states in drafting negotiations that “the crime was unnecessary because its elements were already covered by the crimes of rape and unlawful detention in the Statute.”[173] However, the Chamber reasoned, “As with any crime, forced pregnancy must be interpreted in a manner which gives this crime independent meaning from the other sexual and gender based violence crimes in the Statute.” [174] This, the judges held, “implicates the principle of fair labelling, and how the proper characterisation of the evil committed, that is to say, calling the crime by its true name, is part of the justice sought by the victims. It is not enough to punish it merely as a combination of other crimes.” [175]
For similar reasons, the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the ICC have reached beyond the offenses codified explicitly within their statutes to articulate and distinguish under the category of “other inhumane acts” the crime against humanity of forced marriage.[176] Here, too, an individual guilty of that crime is almost certain to be guilty of some combination of other crimes against humanity (such as forced labor, enslavement, sexual slavery, or forced pregnancy) for the same impugned acts. However, forced marriage was elaborated on the grounds that, even in aggregate, those other offenses do not fully capture the wrongfulness of forcibly rendering someone a spouse.[177] In the landmark SCSL judgment, forced marriage was deemed to include “a forced conjugal association” that is distinctive in its exclusivity, its entailment of mutual obligations, and in inflicting a particular form of “long-term social stigmatization” arising from the marital association, with all of the challenges that poses for community reintegration.[178]
Further exemplifying the importance of moral meaning in the expression of international criminal law is the Rome Statute’s approach to the crime against humanity of persecution. Article 7(1)(h) provides that persecution must be committed “in connection with” a “crime within the jurisdiction of the Court.”[179] As such, acts qualifying for this crime are guaranteed also to qualify for at least one other ICC crime. To charge such acts as persecution, rather than the alternative ICC crime, is meaningful only in identifying discriminatory intent. There is no formal penalty differential between the criminal categories, and discriminatory intent can anyway be an exacerbating factor in sentencing for any crime.[180] As such, the value of the distinct category inheres not in its implications for retribution, deterrence, or coordination, but rather in enabling the specific condemnation of discriminatory atrocity.[181]
Ultimately, for a practice to qualify as an international crime, it must be assumed from the legal point of view that it entails a particular kind of wrong. A normative account of the crime responds to the imperative to clarify that moral meaning and to distinguish the meanings of overlapping prohibitions, thus respecting the rights of victims and the accused and ensuring the integrity of criminal law’s expressive function. A normative account can also shed light on interpretive questions, inform charging and other prosecutorial decisions in contexts of scarce resources, and help to sharpen the work of civil society actors seeking to use systems of international criminal justice as part of a broader strategic response to malign policies. [182]
In contemplating the appropriate account of starvation, it is worth reflecting on the range of kinds of wrongdoing covered by war crimes law. One way of classifying those crimes would map them onto roughly the following issue areas:
attacking legally protected persons in the conduct of hostilities (such as surrendering or wounded combatants, medical personnel, humanitarian actors, peacekeepers, or civilians [including via disproportionate or indiscriminate attack]);
mistreating individuals under one’s immediate custody or control (including by inflicting outrages upon their dignity, subjecting them to cruel treatment, mutilation, medical experimentation, murder, or torture, using them as hostages, or prosecuting them without fair trial protections);
sexual or gender-based violence (including inflicting outrages upon dignity, engaging in rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence);
pillaging property or attacking or causing excessive damage to protected objects (such as civilian property, medical or humanitarian material, units, or transport, cultural heritage, and the environment);
drawing on or compelling the combatancy of persons protected from performing that function (such as children, enemy nationals, or enemy prisoners of war);
deporting, forcibly transferring, or inflicting collective punishment on the civilian population;
abusing the control afforded by belligerent occupation (such as by transferring one’s own population into the occupied territory);
endangering persons or undermining the law of armed conflict by engaging in certain rule-breaking conduct that is prohibited even when no malign consequence arises (such as using prohibited weapons or declaring no quarter); and
exploiting the laws of war in ways that put innocent persons at heightened risk (such as by using human shields, engaging in perfidy, or making improper use of flags of truce or medical emblems).
To be clear, this is not a formal classification; one could draw the lines differently. Moreover, there are overlapping normative features across these clusters, as well as important elements that distinguish the individual crimes within each cluster, as the unique expressive value of each crime demands.[183] For example, one might distinguish child soldiering from other forms of compelled participation in armed conflict due to the distinctive concerns associated with the protection of children, as compared to adults. Nonetheless, the categorization above indicates the expressive diversity within the war crimes category.
In contemplating the place of the starvation war crime in this framework, it is worth noting that most manifestations of starvation of civilians as a method of warfare could in principle qualify for multiple war crimes, including attacks on civilians, collective punishment, forced transfer or deportation, indiscriminate (or disproportionate) attacks, and attacks on civilian or other protected objects.[184] Cases of widespread or systematic starvation (which might be thought to include all instances of starvation as a “method” of warfare)[185] could also qualify as one or more crimes against humanity, including, most obviously, murder, extermination, forcible transfer, or other inhumane acts.[186] A persuasive normative account of the starvation crime ought to make sense of it as a war crime, while also identifying the features that warrant its distinct articulation and application.
The simplest account of the core wrong of illegal starvation tactics is that such methods inflict a range of harms, and ultimately death, on a category of persons not liable to be attacked in that way, even in war—namely, civilians who are not taking a direct part in hostilities. At the very least, starvation tactics endanger civilians in those respects. Thus understood, the crime of using starvation of civilians as a method of warfare might be thought to fit primarily and straightforwardly within the first cluster of war crimes in the list above, as a form of attack on a protected category of persons (civilians).
This is a common theory of the crime. One of the leading commentaries on the Rome Statute identifies article 8(2)(b)(xxv) as fundamentally “an application of the prohibition to attack civilians.”[187] Contributors to a key IHL text argue similarly that the starvation ban is “[d]erived from the principle of distinction.” [188] The International Committee of the Red Cross’s commentary on the underlying rules in the Additional Protocols supports this position, describing the prohibition on starvation methods in Article 14 of Protocol II as “really only a specific application of common Article 3, which imposes on parties to the conflict the obligation to guarantee humane treatment for all persons not participating in hostilities, and in particular prohibits violence to life.”[189] Announcing an indictment related to alleged war crimes perpetrated in Sudan between 1998 and 2003, the Åklagarmyndigheten (Swedish Prosecution Authority) offered the practice of burning crops as an example of an indiscriminate attack or an attack on civilians.[190] The International Commission of Inquiry on Darfur approvingly cited the U.K. Manual of the Law of Armed Conflict for the view that the starvation ban “follows” from the legal fact that “[v]iolence to the life and person of civilians is prohibited, whatever method is adopted to achieve it.”[191] It is, on that interpretation, a prohibition rooted ultimately in the right to life.[192] Notwithstanding the complexity associated with the meaning of “attack” or “violence” in IHL,[193] the U.K. Manual extends this reasoning to sieges, blockades, and the “blocking of relief supplies with the intent of causing starvation.”[194] Along similar lines, the fact that starvation tactics lead ultimately to the infliction of death is thought to implicate extermination (mass‑murder) as the primary manifestation of this wrong in the crimes against humanity category.[195]
On the one hand, this common view of the prohibition’s normative core gains credibility from its fit with the general criminality of attacking civilians and civilian populations. On the other hand, precisely that connection raises the question of whether the starvation ban has a distinct function or meaning that cannot be subsumed by the general prohibition and criminalization of attacks on civilians.[196] Several such functions might be invoked.
First, the separate articulation of the starvation ban eliminates any ambiguity as to whether the principle underpinning the ban on attacking civilians also applies legally to methods that inflict the same fundamental wrong via a different route. Until relatively recently, the application of that underlying principle to encirclement starvation was not obvious.[197] Walzer observed of the normative posture of what he terms the “war convention”[198] as it existed shortly before the agreement of the Additional Protocols, “If there is a general rule that civilian deaths must not be aimed at, the siege is a great exception.”[199]
In light of both the historical permissibility of siege warfare and ongoing debates regarding the meaning of “attack” in IHL, it could prove complicated to rely on the war crime of attacking civilians as the basis for prosecuting encirclement deprivation.[200] Notably, in his defense of the permissibility of such tactics, Watts (like Walzer) is explicit about the status of siege starvation as a normative “outlier” compared to the rules protecting civilians from attack in IHL.[201] Given that context, the specific criminalization of starvation methods, including with explicit reference to deprivation by impeding the delivery of relief supplies, can be understood to serve the function of dispelling doubt about whether such methods are covered by the more general war crimes related to the protection of civilians.
Second, the separate articulation of the starvation crime might be thought to obviate some of the practical obstacles associated with attaching other war crimes and crimes against humanity to starvation methods. At the crux of these difficulties is the fact that the outcome to which the criminal proscription is putatively attentive (namely, death) is several steps removed from the impugned conduct. The ultimate cause of death in famines is typically not starvation itself, but infection with one or more of the communicable diseases that proliferate in such situations. [202] Depriving populations of essentials enables such proliferation, but outbreaks inevitably involve multiple factors, including complications arising from the policies of the besieged authorities. [203]
That reality affects the viability of any criminal prohibition that requires establishing that the impugned conduct caused a proscribed consequence.[204] At the ICC, that category of prohibitions includes the war crimes of killing, murder, willfully causing great suffering, inflicting excessive collateral injury or death on civilians, and the crimes against humanity of murder and extermination. [205] At the ad hoc tribunals, the crime of attacking civilians was considered established only if the attacks could be shown to have caused death or serious injury.[206] The latter requirement has not been incorporated into the corollary ICC crime, but the aforementioned ambiguities regarding the meaning of “attack” remain pertinent in that context.[207]
These obstacles are not hypothetical. The Supreme Court Chamber of the ECCC reversed a finding of extermination associated with the starvation of persons during the transfer of hundreds of thousands under the Khmer Rouge on the grounds that the link between mass deprivation and large-scale death was not established.[208] In the context of the siege of Sarajevo, the U.N. Commission of Experts found the supply of essentials to have been “extremely limited” but determined that there was no indication that this had caused deaths.[209] The implication was clear: “As no one appears to have died of starvation, cold, or dehydration in Sarajevo, it is unlikely anyone could be held liable” for siege starvation.[210] The policies of the besieged Sarajevan authorities further complicated the question of causation.[211] Seen in this light, the ICC starvation crime might be thought to provide distinctive value by focusing on endangerment and thus eliminating the peculiar difficulty of establishing causation in this context.
Third, the distinct articulation of starvation within the normative cluster of attacks on civilians and other protected persons might also be thought to enable the precise identification of a particular form of that wrong. Starvation inflicts specific kinds of physical and psychological suffering, has life-changing impacts on children, heightens the affected population’s vulnerability to the spread of infectious disease, contributes to mass displacement and economic deprivation, portends transgenerational reverberating effects, and ultimately kills via these and other mechanisms.[212] Although kinetic attacks on civilians also cause a spectrum of immediate and reverberating harms, both the longer temporal dimension and the nature of the harms associated with starvation are distinctive.[213] Thus, starvation tactics have been described as inflicting “death in slow motion.” [214] Characterized in that way, the starvation crime might be understood to serve a function within its war crimes cluster parallel to that served by the act of inflicting conditions of life calculated to bring about physical destruction within the umbrella category of genocide. [215]
In sum, on this common view, the basic wrong at the heart of the starvation crime is the targeted or indiscriminate endangerment of persons who ought not be attacked in that way even in armed conflict. Codifying a distinct starvation crime within that broader category serves three functions. First, it removes any ambiguity regarding the criminality of starvation by encirclement or by the removal of essentials. Second, it obviates the unique challenge of establishing causation in this context. Third, it allows for a more precise condemnation of the particular forms of suffering and death specific to starvation methods.
B. Necessity Revisited: Graduality and Civilian Harm
Accepting this account, one might think that the straightforward interpretive implication would be that civilian starvation should be understood to be broadly and categorically prohibited. As noted above, attacks targeting civilians are prohibited and criminal.[216] Similarly, it is prohibited for belligerents to engage in attacks that fail to distinguish between civilians and combatants (or other military objectives) or that use means or methods of warfare that cannot be directed at a specific military objective.[217] Indiscriminate attacks are prohibited and criminal under customary international law.[218] Although the Rome Statute does not address such attacks explicitly, an ICC Trial Chamber has determined that attacks inflicted “indiscriminately” on “civilians and fighters alike” amount to conduct undertaken with a dual purpose of targeting both combatants and civilians.[219] Moreover, populations comprised predominantly of civilians retain their protected status under that rule, even when there are combatants ensconced within.[220] The customary and Rome Statute war crime of attacking such a population attaches when the population as a whole is made the target of attack. [221]
These prohibitions are categorical. It is criminal to attack civilians or the civilian population regardless of the military advantage that such an attack might return, regardless of whether the ultimate goal is to inflict suffering on civilians or to neutralize the combatants ensconced within, and regardless of whether there are other available routes to military success. Although there are ongoing disputes about precisely when explosive weapons with wide-area effects may be used in populated areas, [222] it is clear that the ban on attacks that fail to distinguish between civilians and combatants or that use means or methods incapable of such distinction applies even if their indiscriminate fire may have been motivated by apparently benign goals, such as force protection,[223] and even if the attacking party lacked alternative means.[224] Military advantage can be invoked to justify attacks inflicting civilian loss only when that loss is part of the collateral damage arising from discriminate operations targeted at specific military objectives. Even then, the civilian loss expected cannot legally be excessive in relation to the concrete and direct military advantage anticipated.[225]
Through these rules, contemporary IHL protects the right of civilians not to be instrumentalized or treated as expendable in war, unless they have acted to forfeit that right through participating directly in hostilities.[226] Assuming the starvation crime to be rooted in that same principle, one might think that the method would be subject to a similarly categorical proscription. On that view, a starvation siege that deprives the encircled (civilian) population of essentials to starve out the combatants within would be straightforwardly prohibited, as would deprivation operations that inflict starvation on combatants and civilians without discrimination. As with any other attack on civilians or the civilian population, military advantage would offer no basis for interpreting the prohibition more permissively.
And yet, as discussed above, military necessity is understood by some to demand a less stringent approach in the starvation context.[227] On that view, military imperatives demand that the targeted starvation of encircled (civilian) populations and the indiscriminate starvation of combatants and civilians are (or at least should be) permissible in siege situations as long as they are performed with a view to starving out the combatants ensconced within, rather than weaponizing civilian suffering.[228] To be persuasive, such arguments must explain why the military utility of siege deprivation is sufficient to override the pro tanto claims of the affected civilians, when those same civilians have normatively and legally dispositive claims against being subjected to analogous kinetic attacks.[229]
The relevant normative distinction between encirclement deprivation and kinetic attacks cannot inhere either in the fact of military utility (which is both contingent and applicable in principle to either method) or in the ultimate impact on the civilian population (which can be similarly severe in either case). Most plausibly, it would inhere instead in the divergence in the methods’ respective temporal scopes and the implications of that divergence for harm, intent, and responsibility.
Kinetic attacks on civilian populations are characterized primarily by their immediate consequences. Even their reverberating effects are not easily reversed after the fact.[230] When a bomb is dropped, the fullness of the harm entailed is inflicted or set irreversibly in motion. Those killed and maimed are killed and maimed in that moment. The suffering of survivors endures and can be mitigated or exacerbated over time, but its fundamental source is set. The immediacy of these consequences is such that engaging deliberately in the attack entails adopting an intentional posture towards the infliction of civilian harm and death.
The infliction of civilian harm in a siege occurs on a different trajectory. Rather than a moment of immediacy, it is a process of steady escalation, the pace of which can be described comparatively as “glacial.”[231] One of the consequences of that graduality is that the apocalyptic conclusion of famine and mass fatality is relatively uncertain and distant in the early stages. Therefore, whereas the commander who orders kinetic attacks on a civilian population cannot avoid an intentional posture with respect to the resultant civilian harm and death, those involved in siege deprivation may seek to characterize their intention in terms of stimulating capitulation before there is any significant civilian loss.
In that vein, Dinstein insists that Protocol I “completely fails to take into account the inherent nature of siege warfare,” namely that “a siege does not generate starvation for the purpose of killing civilians with hunger, but only in order to cause the encircled town to surrender.” [232] Various authorities, including some military manuals, adopt a similar way of framing the practice, describing the goal as “forcing [ ] surrender,” [233] eliciting “submission,” [234] or generating “capitulation,”[235] as explicitly distinct from purposefully “killing [the inhabitants] with hunger.” [236] Hampson argues that often “the besieging force” structures the deprivation so as “to let [the besieged civilian population] go significantly hungry” but not to starve to death.[237] Although this may entail subjecting civilians to “years with not enough to maintain healthy bodily functions,” she is skeptical that it should be understood as prohibited under the current rules: “starvation is starvation, it is not hunger.”[238]
The point is partly comparative. Encirclement deprivation is framed on this view as “limit[ing] the heavy civilian casualties often associated with urban fighting.” [239] It is a way to “subdue an enemy while limiting direct hostilities”[240] and “avoiding a large-scale atrocity.”[241] The alternative routes to taking the defended locality may be expected to “increase the intensity of the fighting and the associated risks of incidental harm for civilians,”[242] or, worse, may lead to the temptation to “flatten cities and inflict massive suffering.”[243]
Of course, encirclement deprivation also threatens massive suffering. And although threatening a wrong is generally not as bad as consummating the threat, threats can themselves have psychological consequences sufficiently grave to warrant war crime status.[244] Moreover, starvation methods rarely if ever work as pure threats.[245] Capitulation is a response to the escalation of deprivation, not its prospect. Any effort to distinguish starvation methods must grapple with that reality.
Those who defend the permissibility of encirclement deprivation might argue that there is a normatively meaningful difference between the gradual escalation of suffering in that process and the execution of the threat of a kinetic attack on civilians. The latter entails a binary shift from hypothetical to real killing and maiming. Although the execution of such threats can be incremental at the aggregate level, as in the case of a series of small-scale terror attacks on random civilians, this aggregate incrementalism operates alongside an individual binarism—there is nothing gradual about what is done to the direct victims of such attacks.[246] In contrast, the continuation of a siege entails (at each stage) an escalation of suffering that is not only incremental in aggregate, but incremental for the affected individuals. Parts of the population are affected sooner and more acutely than others, but even for the hardest hit, the consequences develop over time. Irreversible impacts, such as death or permanent health effects, occur not in an explosive instant, but through a cumulative and extended process, arising from the combination of the continuous series of decisions to persist with the siege and various intervening factors that may exacerbate or ameliorate its effects.[247]
With encirclement deprivation understood in these terms, it might be argued that intent vis-à-vis its effects can be updated and reframed continually according to the ever-present possibility of capitulation. If one were to accept the controversial normative premise that suffering inflicted up to that point can be treated as a moral sunk cost, even the continuation of a deprivation siege in the late stages might be framed in terms of the besieging party’s ongoing hope that capitulation is imminent.[248] Although civilians would have a significant pro tanto claim against that continuation, the combination of incrementalism and the permanent offer of a way out might be invoked to suggest the possibility of a different and more accommodating path to the justification of encirclement deprivation than is available for indiscriminate bombardment or other violent attacks on civilian populations.
In sum, whereas attacking the civilian population entails the intentional killing or maiming of civilians who have not lost their protection from targeting, siege deprivation entails the scalar escalation of pressure combined (at least in principle) with the constant offer of a path to the avoidance of the escalating harm.[249] As such, the discrimination between civilians and combatants absent from the initial deprivation is always possible, including through civilians’ own willingness to accept the available egress or through their leadership’s capitulation. Therefore, although the coercive imposition of deprivation entails a pro tanto wrong, it might be argued to be less severe and direct an abrogation of the rights of those affected than would be inflicted by a kinetic attack. Indeed, some argue that civilians who eschew egress when it is offered thereby forfeit any right not to be subject to the starvation regime.[250]
Overall, there appears to be a two-step normative structure to the claim that siege starvation is appropriately subject to a less restrictive framework under IHL than are analogous kinetic operations. First, just as with a bombing campaign or an urban assault, the pro tanto wrongfulness of starvation methods inheres in the targeted or indiscriminate harm and death inflicted on persons not liable to such attacks. As such, starvation methods and direct kinetic attacks can be evaluated on the same dimension. Second, the fact that encirclement starvation inflicts those harms via gradual and incremental escalation, rather than through an act of immediate violence has normatively significant implications for whether and how that wrong is realized. In particular, encirclement starvation reduces the harm intended by the besieging party at any point, allows in principle for the continuous possibility of escape from that harm, and mitigates the besieging party’s responsibility for harm that could have been avoided by capitulation or civilian egress. Or so the argument might go.
Even on its own terms, this line of reasoning has several significant and interrelated infirmities. First, it relies on the assumption that siege starvation can be effective prior to the ultimate infliction of widespread civilian harm or death. Without that assumption, the notion that intent can be framed around imminent capitulation lacks credibility. And yet, the assumed efficiency of the method is belied by experience. Even “successful” encirclements are often extended and devastating in their effects.[251] It is true, of course, that the efficacy and cost of a given method are always variable. However, given the stakes, the invocation of military necessity in this kind of argument depends for its normative credibility on a particularly robust set of empirical presumptions.
Second, it is distorting to evaluate each incremental decision to initiate or continue a siege or other starvation method in isolation. Encirclement deprivation can have a broad and calamitous aggregate impact over time.[252] The length of the timeline on which that cumulative harm manifests may dull our attentiveness to it, but that reality only emphasizes the importance of elevating its urgency in law.[253] Certainly, the hope of a quick and relatively harmless resolution cannot justify evaluating the initiation of a starvation campaign without reference to its likely or expected implications over the full course of its implementation. Similarly, assessing the continuation of a long-standing siege with exclusive reference to the immediate future relies on the controversial notion that the prior accumulation of wrongful harm and suffering can be dismissed as normatively irrelevant to the decision to persist.[254] Particularly when that prior suffering and the projected future impact are intimately connected as the results of the continuous execution of a single overarching threat, such a disaggregated evaluation is not persuasive.
Third, that civilian egress or capitulation could have avoided or limited the harm of a starvation siege does not mitigate the perpetrator’s responsibility for the harm inflicted. Civilians are under no obligation to leave the encircled area. When they decline to do so, it is legally unambiguous that they do not thereby participate in hostilities or become liable to be targeted.[255] When they are forced not to leave by the besieged party, this does not exempt the besieging party from its responsibilities towards them; rather, it indicates the shared responsibility of the two warring parties for those civilians’ fates.[256] That the besieged and besieging authorities share responsibility in such a situation entails neither that responsibility is divided, nor that the responsibility of the besieging party is in any other way diminished; it simply means that multiple actors bear responsibility for the wrong. Even those civilians who do flee to escape starvation may well be victims of the crime against humanity of forced movement.[257]
However, these problems with the two-step argument for a permissive posture with respect to siege starvation are not the most fundamental. The deeper problem concerns the conceptualization of the normative underpinnings of the crime. Siege starvation is not merely an anomalously slow mechanism by which harm or death is inflicted in war. As elaborated in the next two Sections, it is better understood as a process by which biological imperatives are turned against fundamental human capabilities in a manner more normatively reminiscent of torture than it is of a kinetic attack. This torturous nature of mass deprivation shows the graduality of the method to be not a mitigating element, but a key aspect of its distinctive wrongfulness. Understanding the crime in this way provides the basis for an argument for its categorical prohibition.
As reconstructed in the previous Section, the necessity argument for the permissibility of encirclement starvation bears striking resemblance to necessity arguments sometimes invoked to defend the use of torture in interrogation. As elaborated below, the responses to the latter arguments can shed light on how to think about necessity and wrongfulness in siege starvation.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) states the unequivocal position of international law: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”[258] The European Court of Human Rights takes this to reflect a deeper moral truth: “The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests.”[259] The ban on torture is among the clearest red lines in international law’s protection of the human being.
This absolutism notwithstanding, skeptics of the categorical ban have long argued for a necessity exception. The “ticking bomb” scenario has so pervaded discussion on the issue as to require no introduction here.[260] It informed the highly criticized and ultimately withdrawn executive branch legal memoranda during the George W. Bush administration;[261] it was invoked by multiple candidates, including the eventual winner, in the 2016 U.S. presidential campaign;[262] and it has informed the controversially permissive posture of the Israeli Supreme Court.[263] As in the context of siege starvation, necessity has been invoked in both claims about proper legal interpretation and claims about what the law ought to be.
Thus far, efforts to claim a necessity exception in law have been rejected by the overwhelming majority of legal authorities. Many have also pushed back on the normative claim. As in the case of siege starvation, some question the empirical premises or utility of the ticking bomb scenario. One common line of argument along these lines challenges the premise that torture can produce accurate information.[264] Another contends that the ticking bomb scenario does not reflect real-world conditions.[265] A third holds that structuring a legal permission around it would lead inevitably to a significantly broader and morally unjustifiable opening for legally sanctioned torture.[266] These are all plausible and persuasive lines of rebuttal.
Another response, however, goes deeper, articulating the wrongfulness of torture in a way that distinguishes it from other forms of violence or harm that are thought to be more readily justifiable with reference to defensive necessity. From this perspective, to get drawn into the empirical debate about whether torture works is to concede too much. The independent and more fundamental moral thesis is that such techniques are categorically wrongful, even if at least some forms could be effective in some circumstances. Two arguments along these lines are worth contemplating here.
B. The Wrongfulness of Torture
In a seminal 1978 paper, Henry Shue responds to a common form of the necessity argument for the permissibility of torture.[267] Shue frames the line of thought to which he is responding as follows: “[S]ince killing is worse than torture [in that the former involves the total destruction of the person, whereas the latter involves only partial destruction], and killing is sometimes permitted, especially in war, we ought sometimes to permit torture.”[268] Rejecting the premise that the two acts can be compared simply along the dimension of harmfulness, Shue sets out to identify qualitatively distinctive aspects of torture that warrant treating it differently from ordinary belligerent killing, even when the detainee is an adversary with information about an imminent threat, or at least appears to be so with as high a probability as is necessary to render someone a legitimate target in war.[269]
Almost three decades later, in another influential contribution on the same topic, David Sussman asked, “What is it about torture that sets it apart even from killing, maiming, or imprisoning someone, such that the circumstances that might justify inflicting such harms would not even begin to justify torture?”[270] Shue’s and Sussman’s answers are distinct in important ways, but they also share elements that illuminate the wrongfulness of mass starvation.
For Shue, the first step in distinguishing torture morally is to recognize that it is an attack on the defenseless.[271] Torture begins, he argues, “only after the fight is—for the victim—finished.” [272] As such, it is unlike “the killing in battle of a healthy and well-armed foe.”[273] It fails even a “weak constraint of being a ‘fair fight.’”[274] The victim is entirely at the torturer’s mercy, so the assault on her person “sinks below even the well-regulated mutual slaughter of a justly fought war.”[275] Sussman similarly emphasizes the “absolute” “asymmetry of power, knowledge, and prerogative” between interrogator and detainee in a torture situation.[276]
Shue’s and Sussman’s shared premise is reflected in various respects in the law. For torture to be established as a crime against humanity at the ICC, the Rome Statute requires that the victims have been “in the custody or under the control” of the perpetrator at the time of the abuse.[277] Although there is no formal element along those lines in the war crime definition,[278] the crime applies only to the torture of fighters rendered hors de combat, civilians, medical personnel, or religious personnel taking no active part in the hostilities, and it is therefore “difficult to conceive of the crime being committed” without control or custody.[279] Similarly, a leading commentary on the CAT argues that torture presupposes the exercise of “total control” by one person over another.[280]
Notwithstanding this profound asymmetry, Shue recognizes that the torture victim’s defenselessness is, as a philosophical matter, open to objection. Specifically, the defender of permissible torture might insist that a detainee is not “utterly helpless in the face of unrestrainable assault as long as he or she holds in reserve an act of compliance which would satisfy the torturer and bring the torture to an end.”[281] Along these lines, Sussman suggests that in the ticking bomb scenario, one can frame the detainee’s “continued silence” as “part of his attack.”[282]
Shue and Sussman are ultimately unpersuaded by such objections. For Shue, the way out that is putatively available to the detainee with the information necessary to stop the torture is, morally speaking, no way out at all. This is because torture functions here as a way of overriding the victim’s fidelity to her own higher-order commitments. For the detainee, compliance entails a “betrayal of one’s ideals and one’s comrades.”[283] This, Shue argues, is pivotal: “The possibility of betrayal cannot be counted as an escape,”[284] at least not when those commitments are “profoundly held” (as the necessity of torture would seem to suggest they are).[285] In short, the distinctive wrongfulness of torture—that trait which distinguishes it from other forms of bodily harm or death—inheres, on this view, in the fact that it is an assault on the defenseless, whose only escape is a “violation of integrity,” and is thus no escape at all.[286]
Sussman questions Shue’s framing insofar as it suggests that the wrong of torture would appear to be greater the stronger the detainee’s commitment not to comply, which, particularly in the case of someone presumed to have information about a terrorist threat, may be thought a perverse result.[287] Nonetheless, the account he offers in place of Shue’s also defines torture’s singular wrongfulness with reference to the infliction of the conditions of self-betrayal.[288]
In that vein, Sussman draws the following distinction:
Torture should be distinguished from both coercion and brainwashing, even though all three may often overlap in particular cases. What is distinctive about torture is that it aims to manipulate its victims through their own responses, as agents, to the felt experience of their affects and emotions in a context of dependence, vulnerability, and disorientation. Coercion, in contrast, need only exploit the agent’s rational responses to the cognitive content of these feelings. The coercer tries to influence his victims through their own appreciation of their reasons for action. . . . In principle, we could coerce a being that has no emotional life at all (e.g., a corporate agent such as a state or a university), so long as this being had determinate interests that it rationally pursued in part by anticipating the intentions and actions of other rational agents. But we could not in principle torture this sort of artificial person.[289]
The key difference for the victim of torture, as opposed to the victim of coercion, is that the former must confront the dilemma of whether to give in (and thus violate her or his higher commitments) “not merely with respect to the disvalue of pain and fear, but while caught up in the experience of these very feelings themselves.”[290] Being “caught up” in these feelings precludes deciding reflectively in response to one’s higher-order commitments and the threats posed by the coercive agent. As Sussman puts it, “[w]hen sufficiently intense, pain becomes a person’s entire universe and his entire self, crowding out every other aspect of his mental life. Unlike other harms, pain takes its victim’s agency apart ‘from the inside.’”[291] This is because pain triggers a biological imperative—“something like a bodily demand to change something about one’s condition.”[292] As such, “[n]ormally, one cannot adopt a purely contemplative attitude toward one’s own pain.”[293]
Shifting to using the first person to describe the victim’s perspective, Sussman argues that the fact that pain is experienced as a demand from the victim’s own body means that, although inflicted by the torturer and thus “not unproblematically an exercise of my own agency (the way my reflectively adopted commitments might be),” it is also not “something fully distinct from such agency.”[294] As such, “My suffering [as torture victim] is experienced as not just something the torturer inflicts on me, but as something I do to myself, as a kind of self-betrayal worked through my body and its feelings.”[295] To be clear, it is not necessary that the victim actually comply with the torturer’s demand and thus perform the final act of self-betrayal. The wrong does not inhere in that consequence. Rather, it inheres in twisting the body against the person: “Even if the victim does not break, he will still characteristically discover within himself a host of traitorous temptations.”[296]
Together, Shue and Sussman capture crucial features of what makes torture distinctively wrongful. Torture is not simply the infliction of severe pain or suffering on a defenseless victim; it is the weaponization of the biological imperative to avoid pain and suffering to subjugate the victim’s higher-order desires to her body’s demands. It uses the body to turn the victim against herself and undermines one of the traits we take to be most fundamental to our humanity—our capacity for higher-order commitments.
In addition to being philosophically illuminating on their own terms, these arguments offer the foundation for a compelling account of the international legal prohibition and criminalization of torture. The mere infliction of severe pain or suffering is ordinarily not sufficient to establish torture. Rather, in most legal definitions, the infliction of harm must be structured to turn the victim against herself in one way or another.
The most prominent definition of torture is enshrined in Article 1 of the CAT, which requires that the severe pain or suffering be:
intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing 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.[297]
In each of these purposes is entailed a form of weaponization of the body against the self—as a mechanism by which to cause self-betrayal through confession or other undesired action, as a mechanism by which to bring the body into conflict with past actions through punishment, or as a mechanism by which to bring the body into conflict with identity through discrimination.
Torture’s purpose element is not marginal. As a leading commentary on the CAT explains:
the severity of pain or suffering, although constituting an essential element of the definition of torture, is not a criterion distinguishing torture from cruel and inhuman treatment. . . . Whether or not cruel or inhuman treatment can also be qualified as torture depends . . . above all [on] whether inhuman treatment was used for any of the purposes spelt out.[298]
Although central to the anti-torture regime, the CAT is not the only source for the meaning of torture in international law. Nonetheless, something like the purpose element it articulates has been recognized by a range of human rights authorities, including those interpreting treaties that lack a detailed internal definition of the concept.[299]
There are notable exceptions to this pattern.[300] Indeed, the Rome Statute is internally split on the issue, with the crime against humanity of torture including no purpose element, but the war crime of torture requiring that the prosecutor establish one of the wrongful purposes.[301] However, as things stand, the purpose element remains dominant; both the international criminal tribunals and the ICC (in the war crimes context) have relied on it to distinguish torture from other forms of mistreatment. [302] Even in the Inter-American system, where the definition of torture is explicitly not purpose-specific as a matter of treaty law, the Inter‑American Court of Human Rights has nonetheless had occasion to emphasize the function of torture in breaking the victim’s will.[303]
By explaining why torture is not simply the most painful form of cruel treatment, but a qualitatively distinctive kind of wrongful treatment—a kind that is not specified by the broader category that already guarantees its criminality—Shue’s and Sussman’s accounts clarify why it is important to condemn that particular wrong with precision.[304] The weaponization of the victim’s biological imperatives against her person is central to that explanation.
In the context of detention, the link between starvation and torture is straightforward—starving detainees is one way of inflicting upon them the severe pain or suffering central to torture.[305] However, as discussed in the first Subsection below, a belligerent using starvation methods in the conduct of hostilities rarely controls individual victims in the manner generally thought to be necessary for the legal applicability of torture.[306] Equally, torture as a legal category does not capture certain morally constitutive features of mass starvation as a method of warfare. Specifically, as discussed in the third Subsection below, the use of starvation in the conduct of hostilities involves a social dimension that has no clear equivalent in the context of detainee mistreatment. Together, these distinctions mean that the starvation of civilians as a method of warfare is likely not, and certainly not simply, a form of torture in the legal sense. And yet, the parallels are illuminating. The torturous quality of starvation as a method of warfare distinguishes it from indiscriminate attacks or attacks on civilian populations.
Consider first the question of control. It is possible that innovative legal arguments to stretch torture (or at least inhuman treatment) [307] to cover the use of mass starvation in warfare will gain traction. The two most obvious interpretive routes to that outcome would be to eschew a control element when one is not explicitly provided[308] or to interpret “control” loosely to include the capacity to determine a population’s access to a sufficient supply of indispensable objects.[309] However, whether or not such efforts are successful, there are normatively meaningful distinctions between the kind of control traditionally associated with torture and that associated with conduct of hostilities crimes, such as encirclement deprivation. Those differences suggest that there is some value to having different legal categories for the condemnation and punishment of the two wrongs.
Whether isolated or widespread, random or systematic, the infliction of torture is fundamentally an individual process. No matter the number of their victims, those engaged in torture select whether, how, and when to torture each specific detainee. Indeed, they control their detainees’ fates in a deeply intimate way, determining when each individual wakes, when he washes, whether and how much he eats, whether he sits, whether he has the means to read, write, or paint,
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