GLOBAL RIGHTS COMPLIANCE

SUBMISSIONS TO

THE GROUP OF EMINENT EXPERTS ON YEMEN

1 JUNE 2018

Executive Summary

1. Without prevention and accountability, the severe food security crisis in Yemen is

likely to be the famine that will define this era. Independent mechanisms such as the

Group of Eminent Experts on Yemen (“GEE”) are critical to the process of exposing

the connection of famine to human agency and mass atrocities, shifting international

perception of the causes of famine, and in turn engendering accountability and the

deterrence of future violations. As recently stated at the UN Security Council

(“UNSC”) in March 2018:

The connection between hunger and armed conflict is undeniable…

people are starving not because of a drought or a natural disaster, but
because conflicts are preventing food from getting to those who
desperately need it. This is a man-made food security crisis.1

2. Whether giving rise to individual responsibility or not, the food security crisis within

Yemen is undoubtedly man-made. There is a reasonable basis to conclude that as a

result of the decisions and policies of the Houthi-Saleh forces as well as the Saudi-led

Coalition and other armed groups, civilians in specific areas of Yemen are starving

and/or are facing the threat of starvation.

3. In order to assist the GEE in discharging its mandate, these submissions address not

what the information and/or documentation demonstrates, but how this information

could and should, be used in future accountability mechanisms and, significantly,

what further information would be required for effective identification of root causes

with a view to pursuing accountability. The difficulties in accessing reliable and

probative evidence are familiar in international criminal law (“ICL”). Advising how

evidence arising from a situation of armed conflict has been used to establish

individual criminal responsibility for starvation or analogous international crimes

will, we hope, assist the GEE in exploring how to identify those responsible for any

1UNSC 8213th Meeting, SC/13262, 23 March 2018, accessed at 31 May 2018. GRC advised
several of the permanent representatives of the UNSC on the law of starvation, ahead of this
meeting.

on-going and relevant violations in Yemen. These submissions will be situated

within an outline of the relevant legal framework which, as the GEE will be aware,

remains largely unused at the international or national level.

4. The submissions are organised into the following issues:

i. Conflict context – identifying the main warring parties and making

observations on conflict classification as well as the broad public

awareness of starvation in Yemen;

ii. Law on starvation – giving an overview of the human right to food

and water, or the right to be free from starvation and/or malnutrition

and also the most relevant aspects of ICL, focussing on the war crime

of starvation and the crimes against humanity (“CAH”) of

persecution, extermination and other inhumane acts;

iii. Circumstantial evidence – discussing the ways that circumstantial

evidence may be used, in the absence of direct evidence, to identify

intent and other elements underpinning individual criminal

responsibility in ICL;

iv. Application of law to the factual situation in Yemen – highlighting

three examples of siege, blockade and air strike violations that appear

to be causally linked to starvation as documented by the UNSC Panel

of Experts on Yemen (“UNSC Panel”);

v. Recommendations for further investigation – identifying the type of

information that will be required to support any viable prosecution

for starvation in Yemen; and

vi. Annex A – illustrative examples from the UNSC Panel annual reports

2016-2018.

5. The submissions that follow will make reference solely on alleged violations as

documented and verified by the UNSC Panel. GRC is available to assist in the review

of further evidence, as may be required.

I. Conflict Context

Brief Conflict Summary

6. Yemen has entered its third year of conflict, reducing Yemen as a State into “warring

statelets”.2 The conflict is primarily between the forces supporting President Abd-

Rabbu Mansour Hadi, (“pro-Government forces”), and the Popular Committees

affiliated with the Houthis and the army units loyal to the former President, Ali

Abdullah Saleh (who was killed in a roadside attack on 4 December 2017) (“Houthi-

Saleh forces”). The alliance between the Houthis and the Saleh forces ended in

December 2017 amidst intense fighting in Sana’a. Southern-Resistance Forces

(“SRF”), the armed wing of the Southern Transitional Council who have long

advocated for the secession of Southern Yemen, entered the conflict at the start of

2018.

7. In September 2014, the Houthis took control of Yemen’s capital, Sana’a, advancing

towards Aden in the South. The internationally recognised government of President

Abd-Rabbu Mansour Hadi requested military assistance pursuant to Article 51 of the

UN Charter based on the principle of self-defence, against the Houthis. As a result,

Operation Decisive Storm was launched in 2015 by Saudi Arabia. They lead a

coalition (“Saudi-led Coalition”) of 9 African and Middle East Countries, supported

by the US and the UK.3 The Saudi-led Coalition announced the end of Operation

Decisive Storm on 21 April 2015, but it’s involvement has continued amidst

widespread violations of international humanitarian law (“IHL”) by all parties to the

conflict.

8. The conflict escalated on 4 November 2017 following the firing of a ballistic missile

into Saudi Arabia. The Saudi-led Coalition closed all land crossings into all seaports

and airports in Yemen for a period of approximately three weeks.

2UNSC Panel 2018 Report, S/2018/68, p.2.
3UAE, Kuwait, Bahrain, Qatar (ejected from the Coalition in June 2017), Oman, Sudan Egypt,
Jordan, Morocco (although according to the UNSC Panel 2017 Report S.2018/193, para.29,
Morocco ceased operating air assets to the Saudi-Led Coalition from 22 January 2016)

Conflict Classification

9. The question of the appropriate classification of the multiple armed conflicts within

Yemen is complex. As a preliminary issue, any qualification must be based in fact

and subject to an examination of varying involvements of diverse military actors.

Further evidence would be required to draw firm or durable conclusions.

Nevertheless, this is a question of great significance to the pursuit of accountability

in Yemen, not least because the Rome Statute of the International Criminal Court

(“Rome Statute”) criminalises starvation as a war crime in the context of an

international armed conflict (“IAC”), but not a non-international armed conflict

(“NIAC”).

10. Suffice to say at this stage, the preponderance of opinion suggests that the Yemeni

conflict is and, has been at all relevant times, a NIAC.4 Similar to the approach to

classification taken by the International Criminal Court’s (“ICC”) Prosecutor in the

Afghanistan Situation,5 the fact that the Saudi-led Coalition’s involvement occurred

pursuant to the request of President Hadi’s government and with its apparent

consent, and provided that it was at all times acting in support of the State of Yemen

against a non-state actor (the Houthis), it is likely to lead to it being classified as a

NIAC. As with Afghanistan, the involvement of international states within the

Saudi-led Coalition does not change the character of the conflict to an IAC, unless the

two international actors are in combat in opposition to each other.

11. However, there are indications that aspects of the conflict are, or may in the future

become, international. Iran’s involvement against the Yemeni State may well be

significant to the classification of the conflict. The UNSC Panel’s 2018 Report found

that there were “strong indicators of the supply of arms-related material

4Zamir, Classifiction of Conflicts in International Humanitarian Law: The Legal Impact of
Foreign Intervention in Civil Wars, Edward Elgar Publishing, (2017);
http://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-
yemen#collapse2accord, accessed at 31 May 2018.
5 The International Criminal Court, The Situation in Afghanistan, Summary of the

Prosecutor’s Request for authorisation of an investigation pursuant to article 15, 20

November 2017, para.13, accessed at 31 May 2018.

manufactured in, or emanating from, the Islamic Republic of Iran subsequent to the

establishment of the targeted arms embargo on 14 April 2015” 6 . Though this

evidence does not appear sufficient to alter the classification, it has the potential to

do so. If the actions of the Houthis are deemed attributable to and under the overall

control of Iran, the conflict could become sufficiently internationalised to lead to a

change in the appropriate classification.

12. As stated in Lubanga, the Trial Chamber of the ICC considered that an armed conflict

was of an international character if:

it takes place between two or more States; this extends to

the partial or total occupation of the territory of another
State, whether or not the said occupation meets with armed
resistance. In addition, an internal armed conflict that
breaks out on the territory of a State may become
international – or, depending upon the circumstances, be
international in character alongside an internal armed
conflict – if (i) another State intervenes in that conflict
through its troops (direct intervention), or (ii) some of the
participants in the internal armed conflict act on behalf of
that other State (indirect intervention).7

13. Applying this ‘indirect intervention’ threshold to the facts at hand, it would be

necessary to establish that the foreign State (Iran) had “overall control” over the non-

State actor (the Houthis). In other words, it will be necessary for the GEE and or

other authoritative bodies to consider whether Iran is playing a role in organising,

co-ordinating or planning the military actions of the Houthis, in addition to

financing, training and equipping them or providing operational support.8

14. In sum, definitive conclusions concerning conflict classification are difficult and

outside the parameters of these submissions. At a minimum, further evidence is

6 UNSC Panel 2018 Report, S/2018/68, paras. 79, 86-96, 98-105.
7 Prosecutor v. Thomas Lubanga Dylio, ICC-01/04-01/06, Judgment pursuant to Article 74 of the
Statute, 14 March 2012 (‘Lubanga Trial Judgment’), para. 541. See also, Prosecutor v. Delalić et al.,
IT-96-21-T, Trial Judgment, 16 November 1998 (‘Delalić Trial Judgment’), para. 183.
8 Prosecutor v. Tadić, Appeals Judgment, IT-94-1-A, 15 July 1999.

required as to the nature of Iran’s involvement, or the involvement of any other State

in support of any non-State actor.

Public awareness of starvation in Yemen

15. Due to the extensive, global and regional media coverage alone, it is inevitable that

decision-makers at all levels inside Yemen and those from the Saudi-led Coalition

are aware of the overall nature of the widespread starvation and the scale of the

attendant humanitarian catastrophe. There is a significant volume of credible and

consistent information emanating from a variety of authoritative sources. It has

become an issue of acute concern to State actors, international organisations and the

public at large across many parts of the globe. By way of example, the following six

public statements indicate the notoriety of the situation in Yemen:

- UNSC Presidential Statement March 2018: “The Security Council

expresses its grave concern at the continued deterioration of the
humanitarian situation in Yemen, and the devastating humanitarian
impact of the conflict on civilians. The Security Council recognizes with
concern that the UN estimates that 22.2 million people are now in need of
humanitarian assistance in Yemen; 3.4 million more than last year. The
Security Council expresses deep concern about the acute vulnerability of
civilians to outbreaks of cholera and diphtheria, in light of acute
malnutrition, the threat of famine and the weakness of Yemeni
institutions including the health system, and calls upon all parties to
facilitate vaccination programmes for affected populations by UN
agencies and humanitarian organisations.”9

- United Nations Leaders call on the Saudi-led Coalition to fully lift

blockade of Yemeni Red Sea ports, December 2017: “Yemen remains on
the cusp of one of the largest famines in modern times. Nearly 400,000
children suffer from severe acute malnutrition and face an increased risk
of death. More than 8 million people could starve without urgent food
assistance coming into Yemen. With 90 per cent of the country’s food
imported, the lack of commercial imports through Red Sea ports would
alone push a further 3 million people into starvation. The threat of
widespread famine in a matter of months is very real. This imminent
catastrophe is entirely avoidable, but it requires immediate action.”10

9Presidential Statement S/PRST/2018/5’ (UNSC, 15 March 2018), accessed 31 May 2018.
10United Nations Leaders call on the Saudi-led Coalition to fully lift blockade of Yemeni Red
Sea ports, 2 December 2017, accessed at 31 May 2018.

- UN Secretary General António Guterres, November 2017: “Some 700,000

people in areas of Sa’ada, Hajjah, Hudaydah, and Taizz governorates are
hard to reach because of bureaucratic obstacles, air strikes, shelling and
ground clashes. Both the Alliance of Houthis and Ali Abdellah Saleh
controlling Sana'a, and the Government of Yemen, have imposed
restrictions on the movement and transportation of humanitarian
personnel and aid. An economic blockade has led to a rise in fuel costs by
over 50 per cent and food costs by 30 per cent since before the crisis.”11

- UN Office for the Coordination of Humanitarian Affairs (“OCHA”),

Jamie McGoldrick, March 2017: “[d]eliberate military tactics to shred the
economy have moved an already weak and impoverished country
towards social, economic, and institutional collapse.”12

- World Food Programme June 2017 Report: 6.8 million people severely
food insecure and in need of urgent life-saving emergency food support.
This includes over 3.3 million children and women in Yemen who are
acutely malnourished and require urgent treatment. With approximately
4 in every 10 children under five years acutely malnourished and up to
67% chronically malnourished (stunted), Yemen has some of the highest
rates of malnutrition in the world.13

- UNSC Panel 2018 Report: “The Saudi Arabia-led coalition imposed severe
restrictions on the imports of commercial and humanitarian goods from 6
to 23 November 2017. During the latter period, over 750,600 tons of
commercial and humanitarian goods were diverted from Yemen or their
entry to the country delayed. The blockade is essentially using the
threat of starvation as a bargaining tool and an instrument of war.”14

16. These statements are representative of reporting around the globe that recognises the

humanitarian crisis linked to starvation in Yemen in similar, if not more damning

and urgent terms.

11 Remarks to the Security Council on countries at risk of famine by António Guterres, 12
November 2017, accessed at 31 May 2018.
12 Humanitarian Coordinator in Yemen, Jamie McGoldrick, Statement on the humanitarian

situation in Yemen two Years into the escalation of the conflict, 28 March 2017.
13 World Food Programme June 2017 Report, accessed at 31 May 2018.

14 UNSC Panel 2018 Report, S/2018/68, para. 188-190, ft. 194, accessed at 31 May 2018.

II. The Law on Starvation

17. These submissions provide an overview of the law of starvation under international

human rights law (“IHRL”) and further in more detail within the applicable field of

ICL.

IHRL

18. Enforcing social rights, such as the right to food and water is complex, but they

should not be dismissed when considering accountability mechanisms. It has been

held that to do so, “overlooks the notion of a minimum core of fundamental rights…

which can and should be determined and enforced by courts”15. As per the GEE’s

mandate the final report could make general recommendations on improving the

respect for, and the protection of, the right to be free from starvation. GRC is

available to assist on access to justice and accountability issues, including for

example the feasibility of accountability before relevant UN Treaty Bodies that

provide complaint mechanisms. Further or in the alternative, access to the

International Court of Justice (‘ICJ”) or the European Court of Human Rights

(“ECHR”) could be explored.

19. The right to right to food16 and water, or the right to be free from starvation and/or

malnutrition is provided in various international treaties and national constitutions.17

15 Konstantin Markin v. Russia, Application No. 30078/06, Judgment, 22 March 2012, Concurring
Opinion of Judge Pinto de Albuquerque, pp. 51-55.
16 Key elements of the right to adequate food; Food should be available (from natural

resources or from markets and shops); accessible (physical and economic access – affordable);
adequate (safe for human condition, culturally acceptable and satisfy dietary needs;
sustainable: for both present and future generations.
17 Universal Declaration on the Eradication of Malnutrition and Hunger (adopted 16

November 1974 UN GA Res. 3180 (XXVIII)); Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September
1981), Article 12 (2) and 14 (2); Convention on the Rights of Persons with Disabilities (CRPD) (adopted
13 December 2006, entered into force 3 May 2008), Article 25 (f) and 28 (1); Convention on the Rights
of the Child (adopted 20 November 1989, entered into force 2 September 1990), Articles 24 (2) (c) and
27; see Additional Protocol to the American Convention on Human Rights in the Area of ESCR (‘Protocol
of San Salvador’) (adopted 17 November 1988) at a regional level, the right to adequate food is explicitly
protected by Article 12 (1); African Charter on the Rights and Welfare of the Child (adopted 1 July 1990,
entered into force 29 November 1999), Article 14 (2) (c); Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (adopted 1 July 2003, entered into force 25 November

The two most relevant IHRL instruments, for these purposes, are the Universal

Declaration of Human Rights (“UDHR”) and the International Covenant on

Economic, Social and Cultural Rights (“ICESCR”).

20. Article 25 (1) of the UDHR states that “[e]veryone has the right to a standard of

living adequate for the health and well-being of himself and of his family, including

food.” Whilst the UDHR is not legally binding upon the countries that are signatories

to the declaration, it is considered part of an authoritative expression of article 55 and

56 of the UN Charter, obliging members of the UN such as Yemen and Saudi Arabia,

to promote higher standards of living and solutions for international economic,

social, health and related problems.18

21. Article 11(2) of the ICESCR, which binds Yemen19 (but not Saudi Arabia who have

failed to ratify the ICESCR along with the majority of other international treaties20),

clearly “recogniz[es] the fundamental right of everyone to be free from hunger.” The

rights enshrined under article 11(2) were specifically referenced by the UN

Commission of Inquiry on North Korea which found that Democratic People's

Republic of Korea officials committed crimes against humanity (“CAH”) “by

implementing actions, decisions and policies known to have led to mass starvation,

death by starvation and serious mental and physical injury”21 (“DPRK Report”). The

DPRK Report found that “[r]esponsible officials failed to execute the state’s

obligations under articles 2(2) and 11 of the ICESCR to fulfil the citizens’ right to

2005), Article 15; Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March
2008), Article 5.
18 Simone Hutter, ‘Starvation as a Weapon – Domestic Policies of Deliberate Starvation as a

Means to an End under International Law ‘ (Brill-Nijhoff International Humanitarian Law Series,
2015), p. 32.
19 Yemen ratified and became a signatory in 1987, accessed at 31 May 2018.

20 UN OHCHR Human Rights Instrument Indicators, accessed at 31 May 2018.

21 OHCHR, ‘Report of the Detailed Findings of Commission of Inquiry on Human Rights in

the Democratic People's Republic of Korea’ (2014), UN Doc AHRC/25/CRP.1 (‘OHCHR,

Report on Detailed Findings on Human Rights in the Democratic Republic of Korea, 2014’),
para. 1115-37, accessed at 31 May 2018.

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freedom from hunger without discrimination on grounds of political and social

origin.”22

22. Broadly, a State has three obligations as provided for by the Committee on

Economic, Social and Cultural Rights (“ESCR”):23

i. To respect the access to food: any measure that results in preventing

access to food by, for example, denying food assistance to political

opponents, is prohibited.24

ii. To protect individuals’ enjoyment of the right to food against

violations by third parties: for example, States should prevent third

parties from destroying sources of food and should ensure that food

put on the market is safe and nutritious.25

iii. The obligation to fulfil the right to food: incorporates both an

obligation to facilitate and an obligation to provide. The Committee

on ECSR has emphasised that only when “an individual or group is

unable, for reasons beyond their control, to enjoy the right to adequate

food by the means at their disposal, States have the obligation to fulfil

22 OHCHR, ‘Report of the Detailed Findings of Commission of Inquiry on Human Rights in
the Democratic People's Republic of Korea’ (2014), A/HRC/25/CRP.1, para 1125. This finding
was within the context of findings of CAH, in particular starvation and the right to be free
from hunger without discrimination was held under the inhumane act of extermination.
23 Committee on Economic, Social, and Cultural Rights, General Comment No. 14 (2000) para. 33.

24 Simone Hutter, ‘Starvation as a Weapon – Domestic Policies of Deliberate Starvation as a

Means to an End under International Law’ (Brill-Nijhoff International Humanitarian Law Series,
2015), p. 32, p. 22; Landau David, ‘The Reality of Social Rights Enforcement’ (2012), Harvard
International Law Journal, 53 (1); see also Sepulveda Magdalena, ‘The Nature of the Obligations
under the International Covenant on Economic, Social and Cultural Rights’ (Utrecht: Intersentia,
2003), p. 298.
25 In relation to the conflict in Darfur, the African Human Rights Commission held that the

destruction of homes, livestock, farms and the poisoning of water sources exposed victims to
serious health risks and violated their right to health, Decision of the African HR Commission,
Communication No. 296/2005, Centre on Housing Rights and Evictions v. Sudan, adopted during the
45th Ordinary Session (held 13-27 May 2009), paras. 209-11; see also the Banjul Charter the African Charter
on Human and People’s Rights (1981) which does not explicitly grant the right to food, but it may be
considered indirectly covered by its protection of the right to health under Article 16.

11


(provide) that right directly.” 26 States must be proactive in

strengthening people’s access to food.27

23. In practice the parameters of these three rights have been restrictively applied, often

in the context of mass starvation, as in DPRK Report.28 The obligation to fulfil the

right to food will in reality not be lightly imposed upon a State outside of that

context. For example, this obligation has been engaged in internal conflicts and

emergency situations where access to food, including humanitarian aid, has been

denied.29

24. States must immediately takes steps towards the realisation of the right to food and

immediately prohibit discrimination in access to food, with a view to progressively

achieving the full realisation of the right to food using its maximum resources and

capabilities.30 Violations of the ICESCR may occur when a State fails to ensure the

satisfaction of the minimum essential level required to be free from hunger due to

actions or omissions. In this regard, it is important to distinguish the unwillingness

of a State to comply, which will attract liability, from inability, which will not.31

25. The right to be free from starvation is also indirectly protected within the scope of

the right to life enshrined in a variety of human rights treaties, including article 6 (1)

26 Committee on Economic, Social and Cultural Rights, ‘General Comment No.12’(1999), UN
Doc E.C/12/1999/5. The language expressed by the Committee on ECSR is relevant to Yemen
in relation to the withholding of government salaries and the wartime inflation in food and
fuel prices, rendering individuals and groups unable to access adequate food by means at
their disposal.
27 Committee on Economic, Social and Cultural Rights, General Comment No. 12. (1999),para.

15, accessed at 31 May 2018.

28 OHCHR, ‘Report of the Detailed Findings of Commission of Inquiry on Human Rights in

the Democratic People's Republic of Korea’ (2014), para 1125.

29 Committee on Economic, Social and Cultural Rights, General Comment No. 12. (1999), para

19.
30 Hutter, (2015) Starvation as a Weapon – Domestic Policies of Deliberate Starvation as a Means

to an End under International Law. p.22; Landau David, The Reality of Social Rights Enforcement,
Harvard International Law Journal, Vol. 53, No. 1 (2012); see also Sepulveda Magdalena, The Nature of
the Obligations under the International Covenant on Economic, Social and Cultural Rights, Utrecht:
Intersentia 2003, p.298.
31 Committee on Economic, Social and Cultural Rights, General Comment No. 12; For more

information, see OHCHR Fact Sheet on the Right to Food.

12


of the International Covenant on Civil and Political Rights (“ICCPR”)32, and article 5

of the Arab Charter on Human Rights. However, to our knowledge, the nature and

scope of these protections are yet to be tested in the context of starvation.

International Criminal Law

26. The protection of civilians in armed conflict is a cornerstone of IHL. Intricate rules

defining the obligations of warring parties towards civilians are set out in the four

Geneva Conventions, its two Additional Protocols and within customary

international law.33 The following three foundational principles are significant to

IHL’s application in the Yemen conflict:

a. the principle of distinction:34 parties to the conflict must distinguish

between the civilian population and combatants and between civilian

objects and military objects. Civilians and their objects cannot be

targeted;

b. the principle of military necessity:35 conflicting parties must engage

only in military operations that are necessary to achieve a legitimate

military objective; and

32 Although Saudi Arabia is one of the few nations who is not a party to the ICCPR.
33 Article 38 of United Nations, ‘Statute of the International Court of Justice’ (adopted 26 June
1945, entered into force 24 October 1945) 33 UNTS 993, describes customary international law
as “a general practice accepted as law”; The ICRC notes that “[i]t is generally agreed that the
existence of a rule of customary international law requires the presence of two elements,
namely state practice (usus) and a belief that such practice is required, prohibited or allowed,
depending on the nature of the rule, as a matter of law (opinion juris sive necessitatis)”, See
ICRC, ‘Customary IHL, Introduction, Assessment of Customary International, accessed 31
May 2018.
34 International Committee of the Red Cross (ICRC), Customary International Humanitarian

Law, 2005, Volume I: Rules, Rule 1; Articles 48, 51(2) and 52(2) of Additional Protocol I of the
GC. Note Additional Protocol II does not contain an express reference to distinction in
relation to NIACs but Article 13(1) appears to encompass it. The ICRC has noted that the
principle of distinction constitutes part of customary IHL rules applicable to both types of
conflicts. Rule 7 of the ICRC’s Customary IHL Rules provides that “[t]he parties to the
conflict must at all times distinguish between civilian objects and military objectives. Attacks
may only be directed against military objectives. Attacks must not be directed against civilian
objects,”
35 There is no distinct rule for military necessity under the ICRC, but the principle is

explained in the ICRC Casebook; See also: ICRC Customary International Humanitarian Law:

13


c. the principle of proportionality:36 parties to the conflict must not use

force beyond what is required to attain the military advantage

anticipated. The essence of the rule is that an action is proportionate

when it does not cause incidental civilian casualties and damage

which is excessive in relation to the value of the expected result of the

military operation. 37 In determining whether an attack was

proportionate, it is necessary to examine whether a reasonably well-

informed person in the circumstances of the actual perpetrator,

making reasonable use of the information available to him or her,

could have expected excessive civilian casualties to result from the

attack.38

27. Clear and consistent evidence of the mistreatment of civilians in Yemen, including

starving civilians as a method of warfare, appears to suggest the violation of all three

foundational principles. The GEE’s mandate will enable it to report on the serious

impact starvation has had, and continues to have, on civilians in Yemen, in particular

women and children, leading to clear proposals for mitigation strategies pursuant to

the abatement and accountability of those violations.

28. Given the multi-causal nature of starvation, it is essential that those investigating and

collecting the relevant information understand the elements of the relevant offences

and the nature and quality of the evidence that may carry weight in any prosecution.

The evidence collection stage from cause (e.g., an unlawful siege warfare, blockade,

or siege) to effect (e.g., malnutrition leading to disease epidemics and death such as

cholera in Yemen) must be clearly tracked and understood if the intent of the

contributory actors is to be accurately assessed.

Volume 1: Rules, Rule 15, Rule 8; Geneva Conventions Article 147; and, Instructions for the
Government of Armies of the United States in the Field (Lieber Code). 24 April 1863,
article 14, accessed 31 May 2018.
36 International Committee of the Red Cross (ICRC), Customary International Humanitarian

Law, 2005, Volume I: Rules, Rule 14; Article 51(5)(b) of Additional Protocol I, and repeated in
Article 57 Additional Protocol I.
37 Mulinen, Handbook of the Law of War for Armed Forces, ICRC (1987), para. 389.

38 Prosecutor v. Stanislav Galić, IT-98-29, Judgment (TC), (5 December 2003), para. 58.

14


29. There is yet to be a prosecution of starvation as a distinct crime in ICL, although

approximately 21 cases have featured starvation as context in other distinct CAH,

often in detention situations.39 Our research suggests that only three prosecutions of

the modern era have pleaded starvation as a distinct crime, all on the domestic

level.40 There are of course a host of crimes under the Rome Statute, including

genocide41 and war crimes available in a NIAC,42 that could conceivably capture the

39 The International Military Tribunal at Nuremberg, pp. 34, 43, 54, 230, 297, 251, 298, 214; United
States of America, v. Wilhelm von Leeb, et al, Case No. 12, Judgment, 27 October 1948, pp. 562,
573; Attorney General v. Adolf Eichmann, Case No. 40/61, Judgment, 11 December 1961, para.
244(5); Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-T, Judgment, 21 May 1999, paras. 146,
548, 560; Case No.002, Closing Order, para 1435-1438; Case No. 002 Trial Judgment, paras.
457, 648; Case No. 001 Judgment (TC), para. 335, 372; Delalić Judgment (TC), para. 1113, 1119;
Prosecutor v. Radislav Krstić, IT-98-33-T, Judgment (TC), 2 August 2001 (Krstić Trial Judgment),
para. 15, 26, 28, 566; Prosecutor v. Milorad Knrojelac, IT-97-25-T, Judgment (TC), 15 March 2002
(‘Knrojelac Trial Judgment’), para. 9; Prosecutor v. Dragan Nikolic, IT-94-2-S, Sentencing
Judgment, 18 December 2003 (‘Nikolic Sentencing Judgment’), para. 69; Prosecutor v. Zdravko
Tolimir, IT-05-88/2-T, Judgment (TC), 12 December 2012 (‘Tolimir Trial Judgment’), para. 830;
Prosecutor v. Prlić et al, IT-04-74-T, Judgment (TC), 29 May 2013 (‘Prlić Trial Judgment’), para.
1176-1177, 1181-1184, 1192-1199, 1201-1205; Prosecutor v. Radovan Karadžić, IT-95-5/18-
AR98bis.1, Judgment (AC), 11 July 2013, para. 49; Prosecutor v. Stanislav Galić, IT-98-29-T,
Judgment (TC), 5 December 2003 (Galić Trial Judgment), para. 609, 765; Prosecutor v. Dragomir
Milošević, IT-98-29/1-T, Judgment (TC), 12 December 2007 (Milošević Trial Judgment), para.
208, 910-911, 937; Prosecutor v. Athanase Seromba, ICTR-2001-66-I, Judgment (TC), 13 December
2006 (‘Seromba Trial Judgment’) para. 327; Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-
02/05-01/09, Second Decision on the Arrest Warrant, 12 July 2010 (Al-Bashir Second Decision
on Arrest Warrant), para. 34, 39; Public Prosecutor v. M.P. et al (1997); People's Union for Civil
Liberties v. Union of India & Ors, in the Supreme Court of India, Civil Original Jurisdiction,
Writ Petition (Civil) No.196 of 2001; Special Prosecutor v. Col. Mengistu Hailamariam et al., File
No. 1/87, Ethiopian Federal High Court. (2006); Constitutional Court of Colombia
(Constitutional Case No. C-291/07), 25 Abril 2007. M.P Manuel José Cepeda Espinosa.
Expediente D-6476.
40 Public Prosecutor v. M.P. et al, in the District Court in Zadar, Croatia, K. 74/96, Verdict, 24

April 1997; People's Union for Civil Liberties v. Union of India & Ors, in the Supreme Court of
India, Civil Original Jurisdiction, Writ Petition (Civil) No. 196 of 2001; and Special Prosecutor v.
Col. Mengistu Hailamariam et al., File No. 1/87, Ethiopian Federal High Court (2006).
41 See the following five cases where starvation was pursued within the offence of genocide:

Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-I, Judgment, 146 (May 21, 1999); Prosecutor v.
Seromba, ICTR-2001-66-I; Karadzic, 11 July 2013, Rule 98bis Judgment (AC): Al-Bashir, Second
Decision on the Arrest Warrant (4 March 2009 and 12 July 2010); Case No 002, Trial
Judgment: p.457.
42 Other feasible war crimes, which could be considered in relation to the deliberate starvation

of a civilian population, would be the following: three under Article 8 (2) (a) – Grave breaches
of the Geneva Conventions (i) Wilful killing; (ii) Torture or inhuman treatment, including
biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or
health; two crimes under Article 8(2)(c) – Serious violations of common article 3 of the
Geneva Conventions (i) Violence to life and person, in particular murder of all kinds,

15


misconduct of starvation and starvation related violations. However, this section will

focus upon starvation as a war crime under Article 8(2)(b)(xxv) the Rome Statute,

then second and more briefly, starvation within the rubric of CAH, in particular, the

crimes of extermination, persecution and other inhumane acts.

Starvation as a war crime under Article 8(2)(b)(xxv) of the Rome Statute

30. Article 8(2)(b)(xxv) of the Rome Statute (“Article 8”) expressly criminalises starvation

as a war crime in the following terms:

[i]ntentionally using starvation of civilians as a method of

warfare by depriving them of objects indispensable to their
survival, including willfully impeding relief supplies as
provided for under the Geneva Conventions.

31. There are four necessary elements to establish the offence:

The contextual “chapeau” elements

(i) The conduct took place in the context of and was associated with an
international armed conflict;
(ii) The perpetrator was aware of factual circumstances that established
the existence of an armed conflict;

Actus Reus
(iii) The perpetrator deprived civilians of objects indispensable to their
survival; and

Mens Rea
(iv) The perpetrator intended to starve the civilians as a method of
warfare, including wilfully impeding relief supplies.

mutilation, cruel treatment and torture; and (ii) Committing outrages upon personal dignity,
in particular humiliating and degrading treatment; and three under Article 8(2)(e), other
serious violations of customary law: (i) Intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct part in hostilities; or (iii)
Intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations, as long as they are entitled to the protection given to civilians
or civilian objects under the international law of armed conflict; and / or (xii) Destroying or
seizing the property of an adversary unless such destruction or seizure be imperatively
demanded by the necessities of the conflict.

16


32. The prohibition against the deprivation of indispensable items as a method of

warfare, was incorporated to include the IHL prohibition of starvation under article

54 Additional Protocol I and Article 14 of Additional Protocol II of the Geneva

Conventions.

33. As the GEE is aware, Article 8 applies only in IACs. Its inapplicability to NIAC is a

distinction that is, in our view, difficult to rationalise or justify, particularly in light of

the lack of any such distinction in IHL and the apparent customary law position. The

use of starvation is prohibited in customary international law in both IACs and

NIACs. 43 The rule is set forth in numerous military manuals as well as other

instruments pertaining to NIACs and is supported by official statements and

relevant practice in both contexts.44

34. Further, States have generally denounced alleged instances of the use of starvation as

a method of warfare in both IACs and NIACs, which provides at least an indication

of State practice.45 It is also noteworthy that in the recent landmark UNSC Resolution

2147 (2018) which passed unanimously on 24 May 2018, no distinction is made

between the use of starvation of civilians as a method of warfare in a NIAC or an

IAC. As the resolution clearly underlines (without any apparent limitation on its

intended reach) “using starvation of civilians as a method of warfare may constitute

a war crime.”46 Accordingly, there appears no reason why the formal position of the

Rome Statute should prevent the UNSC, the GEE or any other accountability

mechanism from assessing appropriate violations of IHL through the lens of Article 8

regardless of the classification of the conflict. Moreover, such an approach would

obviate the need to consider starvation within the rubric of alternative and less

focused Rome Statute offences (see below at paras. 38-68).

43 Additional Protocol II, Article 14; and ICRC, Customary International Humanitarian Law:
Volume 1: Rules (2005), Rule 53, p. 186, accessed at 31 May 2018.
44 International Committee of the Red Cross (ICRC), Customary International Humanitarian

Law, Volume I: Rules (2005), Rule 53, pp. 186-187.

45 Ibid

46 UNSC Resolution 2417, ‘Protection of civilians in armed conflict’, S/RES/2417 (2018), p.2.

accessed at 31 May 2018.

17


35. Though yet to be applied in practice at the ICC, Article 8 appears to be a

straightforward articulation of the most egregious form of starvation, with the

specific intent to starve civilians at its core. Moreover, it appears to address the

essential civilian protection problem. Depending on how it is interpreted in practice,

it is expansive enough to close any accountability deficit through criminalising

(classic) situations where starvation is used to gain a military advantage, such as

using starvation to achieve a speedier surrender of a besieged town or village.

Notably, however, it does not appear to allow prosecutions for inadvertent

consequences, such as societal mismanagement or otherwise failures to generally live

up to internationally promoted standards of good governance. Likewise, actions that

fall foul of relevant IHRL provisions would not necessarily amount to actionable

prosecutions under this provision.

36. We submit that there are three general categories of evidence that would be needed

to support a prosecution for starvation under Article 8. These are also relevant (but

not necessarily essential) to the other CAH discussed below at paras. 38-68:

a. First, evidence demonstrating the targeting of indispensable objects.

Indispensable objects are interpreted broadly and may include a range

of items including: food, farmland, crops, livestock, drinking water

installations, supplies or irrigation works, aid convoys, medicaments,

basic shelter, electricity power, blankets and clothes;47

b. Second, whilst there is no technical requirement to prove the

humanitarian consequences of the deprivation, it is in our view highly

likely that any prosecution would seek to prove the consequences in

47Examples defined in Article 54 Additional Protocol I. See International Committee of the
Red Cross (ICRC), Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, 17 October 1987, page 655; see also Dörmann, Knut; Doswald-
beck, Louise Evangeline; Kolb, Robert, Elements of War Crimes under the Rome Statute of the
International Criminal Court: Sources and Commentary, (Cambridge, Cambridge University
Press 2003), page 363-4; See also UN OHCHR, Report of the Mapping Exercise Documenting
the Most Serious Violations of Human Rights and IHL Committed within the Territory of the
DRC between March 1993 and June 2003 (Geneva: OHCHR, 2010), para 330, accessed at 31
May 2018.

18


order to demonstrate that the items being deprived were in fact

indispensable to civilian survival. As such, expert or authoritative

opinion evidencing the suffering and the consequences of the

deprivation, remains an essential component capable of causally

linking the violation to a perpetrator; and

c. Third, and perhaps the most challenging, is the collection of evidence

that seeks to explain and detail the causal links between the offending

siege, blockade policy or airstrike on food and water storages, and the

consequential deprivation of items. As above, whilst there is no

technical requirement to prove that the deprivation in question caused

humanitarian consequences, a prosecution would certainly benefit

from, if not require, it.

37. Evidential challenges lie ahead (as foreshadowed by several commentators and

experts with whom we have spoken for the purposes of these submissions). These

will be discussed in detail below at paragraph 70. The most striking difficulties

appear to revolve around questions concerning how to assess the extent to which a

warring party has pursued a legitimate military end, in a manner that is

proportionate to the likelihood that those actions would result in the deprivation of

objects indispensible to survival. Undoubtedly, these concerns will raise complex

questions of how to disentangle legitimate from illegitimate objectives, balancing the

legitimacy of military actions against the likelihood of civilian casualty and

distinguishing intentional acts from those committed in error or due to poor

management or governance. Whilst being cautious not to underestimate them, these

challenges should not be overestimated either. As discussed below at paragraphs 68-

70, they are not unique to starvation and ICL has developed several approaches to

evidence and inference that allow these challenges to be met.

19


Alternative offences - CAH

38. In the event that Yemen remains officially classified as a NIAC, a variety of

alternative offences may offer a more suitable (or accessible) vehicle for

accountability. Other war crimes, genocide (not considered herein) or CAH may

form the bases for prosecutions encompassing man-made famine. However, the use

of these ‘alternative’ crimes is not without consequences: the more the legal

prohibition and labeling diverges from the core elements of the crime of starvation,

the more a prosecution risks failing to capture the essence of the crime. Appropriate

labelling is more than an abstract problem, it ensures that liability appropriately

matches the rights infringed.

39. Having said that, in the absence of any authoritative finding that the conflict may be

considered to be an IAC, the CAH of persecution, extermination and other inhumane

acts of a similar character intentionally causing great suffering, or serious injury to

body or to mental or physical health, are all feasible alternatives that the GEE may

explore when discharging their mandate.

40. The contextual “chapeau” elements of CAH are that:

a. The conduct was committed as part of a widespread or systematic

attack directed against a civilian population; and

b. The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a
civilian population.48

41. CAH require proof of a nexus to a “widespread or systematic attack against a civilian

population”, proof of which is often supplied by evidence of oppressive State policy.

In light of the scale of severely food insecure civilians, including 6.8 million in need

of urgent life-saving treatment, and apparent links to policies obstructing or

48 Elements of Crimes, article 7, accessed at 31 May 2018.

20


destroying food and relief supplies, the evidence may go some distance in

demonstrating these contextual elements.

42. Attack is defined in the Statute at article 7(2)(a):

a course of conduct involving the multiple commission of acts referred to

in paragraph 1 against any civilian population pursuant to or in
furtherance of a State or organizational policy to commit such attack.

43. There is no requirement to establish that the alleged perpetrators explicitly define the

organisational policy. 49 In so far as knowledge and intent is required, the Elements

of Crimes for article 7(1) require that the acts were committed with “knowledge of

the attack”. This requires proof of knowledge of an attack on a civilian population,

and that the perpetrators’ acts were part of that attack.50 As was held in the DPRK

Report, CAH do not require that the State policy underlying them be driven by the

purpose of harming a civilian population, it is sufficient that senior officials setting

the State policy are fully aware of the direct causal relationship between the State

policy and the harm done.51

44. ‘Widespread’ or ‘systematic’ are disjunctive requirements: only one must be

established, though in practice the evidence often establishes the concurrent

existence of both. They exclude random acts of violence and connote large-scale

attacks. “[s]ystematic refers to the organised nature of the acts of violence and the

49 Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment (TC), 7 March 2014, (‘Katanga
Trial Judgment’), para. 1125.
50 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , ICC-01/04-01/07, Decision on the

Confirmation of Charges, 30 September 2008 (‘Katanga & Chui, Decision on Confirmation of

Charges’), para. 401. See also Prosecutor v. Kordic & Cerkez, IT-95-14/2-A, Judgment (AC), 17
December 2004 (‘Kordic & Cerkez Appeals Judgment’), para. 99; Prosecutor v. Tihomir Blaskic,
IT-95-14-A, Judgment (TC), 29 July 2004 (‘Blaskic, Appeals Judgment’) para. 124; Prosecutor v.
Laurent Semanza, ICTR-97-20-T, Judgment (TC), 15 May 2003 (‘Semanza Trial Judgment’), para.
332.
51 OHCHR, Report of the Commission of Inquiry on Human Rights in the Democratic

People's Republic of Korea, UN Doc. A/HRC/25/63 (‘Report on Human Rights in the

Democratic People’s Republic of Korea) para. 1135.

21


improbability of their random occurrence.”52 A systematic attack also requires a

“multiplicity of victims” pursuant to article 7(2)(a) of the Rome Statute.

45. In relation to the third criterion- an attack “directed against the civilian population” -

the GEE, for the purposes of making a starvation related finding, will need to

enquire into evidence of a policy to direct an attack against a civilian population,

either linked to the Saudi-led Coalition’s aerial bombardment or blockade policies, or

the siege warfare targeting the civilian population by the Houthis or violations by

other warring parties. 53 The Saudi-led Coalition’s aerial bombardment and the

Houthi forces’ use of explosive ordnance against civilian areas and populations have

been roundly condemned, including by the UNSC.54 We submit that starvation must

be considered within that overall context.

46. An attack that is planned, directed or organised – as opposed to spontaneous or

isolated acts of violence – will satisfy this criterion.55 In most cases, the existence of a

State or organisational policy will be inferred from, among other things, repeated

actions according to the same sequence, or preparations or mobilisation orchestrated

or coordinated by a State or organisation.56 It may involve the multiple commissions

of relevant and diverse acts. The civilian population must be the primary target and

not incidental to an attack, a factor that will likely require further circumstantial

52 Katanga & Chui, Decision on the Confirmation of Charges, para. 394., para. 394
53 see further Annex 64 for an analysis by the UNSC Panel on the indiscriminate use of
explosive ordnance against civilian populated areas in Yemen and Saudi Arabia by Houthi-
Saleh forces, UNSC Panel 2018 Report, S/2018/68, pp.294-303, Annex 64.
54 UNSC Panel 2018 Report, S/2018/68, p.2 and Annex 58 where ten cases of Saudi-led

Coalition airstrikes unlawfully targeting civilians are analysed in detail; see also UNSC Panel
2017 Report S.2018/193, paras. 126-131 where some of the attacks were considered in the
context of war crimes; UN News September 2017; Human Rights Watch; and 252 alleged
violations of IHL were being tracked by the UK Ministry of Defence in January 2017; and, the
notorious funeral attack which left 132 dead and 695 injured on 8 October 2016, a ‘double-tap’
attack was found by the UNSC Panel, admitted by the Saudi-led Coalition and explaining
that its warplanes had “wrongly targeted the funeral”. Accessed at 31 May 2018.
55 Prosecutor v. Jean Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Aritcle

61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Jean-Pierre
Bemba Gombo, 15 June 2009, para 81.
56 Katanga Trial Judgment para. 1109.

22


evidence and a close analysis of the documentation collected. 57 Thus, the

establishment of the attack element does not strictly require the deliberate targeting

of food and water targets, although as discussed below this would be supportive of

any finding or prosecution focussed on starvation.

47. In relation to the Saudi-led Coalition, the apparent repetition and volume of

airstrikes on food and water storage facilities and infrastructure, food trucks and

agricultural land, (as set out in the Annex and across the UNSC Panel Reports, with

figures of overall strikes during the first 6 months of 2017 estimated around 5,676

strikes58) offers a reasonable basis with which to investigate further the improbability

of the strikes being random or a mistaken occurrence. Similarly the UNSC concluded

that the Saudi-led Coalition’s blockade policy was coordinated to restrict items that

were essentially civilian in nature, primarily humanitarian aid. 59 These types of

conclusions could establish in part the causal link between the Saudi-led Coalition’s

blockade policy and relevant harm to civilians.

i. Persecution

48. In addition to the chapeau elements, there are five necessary elements to establish

the offence of persecution under Article 7(1)(h) of the Rome Statute60:

Actus Reus

(i) The perpetrator severely deprived, contrary to international law, one

or more persons of fundamental rights;

57 Ibid para. 1104.
58 Protection Cluster in Yemen Report, led by the United Nations High Commission for
Refugees (UNHCR) and relied upon in the UNSC September Monthly Forecast 2017 ( See
also: The Civil Impact Monitoring Report, Bi-Monthly Report, which is a service of the
Protection Cluster Yemen, which documented between December 2017 – January 2018 322
airstrikes, 817 casualties, 507 of which were fatal with 60 children and 32 women within those
numbers. “Houses and farms were the most frequently impacted civilian structures, with
more than 310 houses and 76 farms damaged, as well as 173 households comprising both
houses and farms”.
59 UNSC Panel 2018 Report, paras 188-191.para 188-191.

60 Elements of Crimes, Article 7(1)(h) persecution, accessed at 31 May 2018

23


(ii) The perpetrator targeted such person or persons by reason of the

identity of a group or collectivity or targeted the group or collectivity
as such;
(iii) Such targeting was based on political, racial, national, ethnic, cultural,
religious, gender as defined in Article 7(3) of the Rome Statute, or
other grounds that are universally recognized as impermissible under
international law;
(iv) The conduct was committed in connection with any act referred to in
Article 7(1) of the Rome Statute or any crime within the jurisdiction of
the Court; and

Mens Rea
(v) The perpetrator committed the crime with intent and knowledge (as
set out in Article 3061 of the Rome Statute).

49. Persecution under article 7(1)(h) of the Rome Statute, is an ‘umbrella’ offence, in

that it can connect “a course of conduct or a series of acts” 62 aimed at a

discriminatory purpose:

Persecution is very similar to the cognate concept of gross and systematic

violations of human rights. It consists of the severe deprivation of
fundamental rights on discriminatory grounds. But it is also the link
between crimes against humanity and genocide, in that acts that may
begin as persecution of a minority group may lead, in their most extreme
manifestation, to a plan for the intentional destruction of the group.63

50. Persecution may offer the ability to label the offence appropriately. Indeed, it has

already been considered in the context of starvation in the DPRK Report, whereby:

“decisions and policies violating the right to food, which were applied for the

purposes of sustaining the present political system, in full awareness that such

61 Article 30 Rome Statute: “For the purposes of this article, a person has intent where: (a) In
relation to conduct, that person means to engage in the conduct; (b) In relation to a
consequence, that person means to cause that consequence or is aware that it will occur in the
ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness
that a circumstance exists or a consequence will occur in the ordinary course of events.
‘Know’ and ‘knowingly’ shall be construed accordingly.”
62 Prosecutor v. Kupreškić et al., IT-95-16-A, Judgment (AC), 23 October 2001 (Kupreškić Appeals

Judgment), para. 97.

63 W. Schabas, The International Criminal Court: A Commentary to the Rome Statute, (2nd Edition)

(Oxford: OUP, 2010), p.188

24


decisions would exacerbate starvation and related deaths of much of the population”

amounted to CAH.64

51. It is submitted that the deprivation of the right to food and water indispensable to

survival, or gross violations of the right to be free from starvation and/or

malnutrition (modifying article 25 (1) of the UDHR and article 11(2) of ICESCR), or

serious attacks on objects indispensable to the survival of the civilian population and

the denial of access to humanitarian aid65 may be capable, provided proof of other

essential elements, of sustaining a charge of persecution. To conceptualise and plead

a charge of persecution in those terms could offer a legal characterisation that

appropriately describes the rights infringed. There is precedent for this approach at

the ECCC66 where the simple formulation of the deprivation of food and water (in

the context of detention),67 was part of the conduct underpinning persecution.

52. In so far as the discriminatory intent is required, as stated under element (ii) above,

investigations and analysis would be required to distinguish between attacks

targeted at civilians designed to leverage military advantage and persecutory attacks

deliberately targeting a particular group (on the basis of political, racial, national,

ethnic, cultural, religious, or gender).68 For example, it would need to be established

that the Houthis obstructed aid to targeted civilians or civilian populations in

besieged areas by reason of their identity and affiliation to a particular group.

ii. Extermination

64 William Schabas, ‘The International Criminal Court: A Commentary to the Rome Statute’,
(2nd Edition, Oxford: OUP, 2010), p.193, referencing ft. 441: OHCHR, Report of the
Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, UN
Doc. A/HRC/25/63 (‘Report on Human Rights in the Democratic People’s Republic of Korea),
para. 78; OHCHR, Report of the Detailed Findings on Human Rights in the Democratic
Republic of Korea, 2014, para. 1115-37, accessed at 31 May 2018
65 Adopting the language Article 54 of Additional Protocol 1 to the Geneva Conventions.

66 Case No.002, Closing Order, para. 1435-1438; Case No 002, Judgment (TC), para. 457, 648;

Case No 001, Judgment (TC), para. 3339, 372.

67 See also, Prosecutor v. Prlić et al Judgment (TC), Vol Ill IT 04 74 (29 May 2013) paras. 1159,

1162.
68 Elements of Crimes, para 3, Article 7 (1) (h) persecution, accessed at 31 May 2018.

25


53. Should there exist reliable information evidencing deaths occurring from starvation

in Yemen, extermination as a CAH could also offer an appropriate charge allowing

prosecution for the deliberate mass starvation of civilians.

54. As with all CAH, the chapeau elements must first be established. In addition, the

substantive elements of the offence of extermination are:69

Actus Reus
(i) the perpetrator killed70 one or more persons, including by inflicting
conditions of life calculated to bring about the destruction of part of a
population. The ICC Elements of Crimes specifically envisage the
deprivation of food and medicine as being sufficient to establish such
conditions;71
(ii) the conduct constituted, or took place as part of,72 a mass killing of
members of a civilian population; and

Mens Rea
(iii) The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack directed
against a civilian population (as set out in Article 30 of the Rome
Statute).

55. The case-law of the ad hoc Tribunals for the former Yugoslavia and for Rwanda have

generally defined extermination as the act of killing on a large scale.73 This definition

is mirrored by the ICC’s Elements of Crimes, which describes extermination as a

mass killing, directly or indirectly,74 of members of a civilian population, including

69 Elements of Crimes, Article 7 (1) (h) persecution, accessed at 31 May 2018.
70 The conduct could be committed by different methods of killing, either directly or
indirectly. (Fn 8, Elements of Crimes.) accessed at 31 May 2018.
71 The infliction of such conditions could include the deprivation of access to food and

medicine. (Fn 9, Elements of Crimes.) accessed at 31 May 2018.

72 The term “as part of” would include the initial conduct in a mass killing. (Fn 10, Elements

of Crimes.), accessed at 31 May 2018.

73 Prosecutor v. Stakić, No. IT-97-24-A, Judgment (AC), 22 March 2006, at para. 516; Prosecutor

v. Seromba, ICTR-01-66-A, Judgment (AC), 12 March 2008, para. 189.

74 Article 7(1)(b), fn. 8, Elements of Crimes, accessed at 31 May 2018.

26


by inflicting conditions of life calculated to bring about the destruction of part of a

population.75

56. The act of killing in the context of the crime of extermination may be established

through acts, omissions, or a combination thereof.76 For the purpose of starvation-

related crimes, any investigation would likely focus on indirect methods of causing

death, which, according to the Elements of Crimes, includes “inflicting conditions of

life calculated to bring about the destruction of part of a population”.77

57. The infliction of conditions of life calculated to bring about the destruction of part of

a population may be described as “methods of destruction that do not immediately

kill”, but ultimately seek the physical destruction of the victims.78 As an illustration,

such methods may include:

a. subjecting the victims to a subsistence diet;79

b. “failing to provide adequate medical care”;

c. systematically expelling victims from their homes; “and generally

creating circumstances that would lead to a slow death such as the

lack of proper food, water80, shelter, clothing, sanitation, (again linked

to the language of starvation i.e. objects indispensible to survival”;

d. preventing access to food in a situation where there was very limited

access to other basic foodstuffs;81

75 Article 7(1)(b), Elements of Crimes. See also, Article 7(1)(b) and 7(2)(b), Rome Statute; Article
7(1)(b), fn. 9, Elements of Crimes, which provide that “infliction of such conditions could
include the deprivation of access to food and medicine.” accessed at 31 May 2018.
76 Prosecutor v. Seromba, ICTR-01-66-A, Judgment (AC), 12 March 2008, para. 189; Prosecutor v.

Stakić, No. IT-97-24-A, Judgment (AC), 22 March 2006, at para. 259, accessed at 31 May 2018
77 Article 7(1)(b), Elements of Crimes.

78 Tolimir, Judgment (TC), para. 740, described in the context of genocide by deliberately

inflicting conditions of life calculated to bring about physical destruction.

79 Prosecutor v. Krajisnik, IT-00-39-T, Judgment (TC), 27 September 2006, paras. 795-6;

Prosecutor v. Brdjanin, IT-99-36-T, Judgemnt (TC), 1 September 2004, para. 912.

80 Prosecutor v. Brdjanin, IT-99-36-T, Judgment (TC), 1 September 2004, para. 913.

81 Prosecutor v. Seromba, ICTR-01-66-A, Judgment (AC), 12 March 2008, para. 327.

27


e. targeted attacks against food or food sources such as farmlands and

humanitarian supplies or suppliers may support a finding that

victims were deprived of access to food;

f. targeted attacks against water or water sources may support a finding

that victims were deprived of access to food;

g. blockades impeding the access of humanitarian aid, including food,

may support a finding of deprivation of access to food;82 and

h. “imprisoning a large number of people and withholding the

necessities of life which results in mass death.”83

58. As mentioned previously, it must also be shown that the perpetrator’s conduct

“constituted, or took place as part of, a mass killing of members of a civilian

population”,84 and that the perpetrator was aware of that fact.85

59. The large-scale nature of a killing has not been interpreted to suggest a minimum

number of victims.86 Extermination as a CAH is often established where there are

thousands of deaths,87 but there have been cases where the deaths totaled as few as

eight.88 The assessment will be made on a case-by-case basis, taking into account the

relevant circumstances in which the killings have occurred. 89 Some of the

circumstances which may be considered relevant to any investigation would include:

“the time and place of the killings; the selection of the victims and the manner in

82 Tolimir, Judgment (TC), para. 740, described in the context of genocide by deliberately
inflicting conditions of life calculated to bring about physical destruction; Prosecutor v.
Tolimir, IT-05-88/2-A, Judgment (AC), 8 April 2015, para. 225.
83 Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-T, Judgment (TC), 21 May 1999, para. 146.

84 Article 7(1)(b), Elements of Crimes.

85 Article 30, Rome Statute.

86 Prosecutor v. Lukić & Lukić, IT-98-32/1-A, Judgment (AC), 4 December 2012, para. 537.

87 Prosecutor v. Lukić & Lukić, IT-98-32/1-A, Judgment (AC), 4 December 2012, para. 537;

Prosecutor v. Krstić, IT-98-33-T, Judgment (TC), 2 August 2001, paras 79, 84, 426, 505;
Prosecutor v. Ntakirutimana, ICTR-96-10-A and ICTR-96-17-A, Judgment (AC), 13 December
2004, para. 521.
88 Prosecutor v. Akayesu, ICTR-96-4-T, Judgment (TC), 2 September 1998, para. 744 (not

challenged on appeal). See also, Prosecutor v. Setako, ICTR-04-81-T, Judgment (TC), 25 February
2010, para. 481 (30 to 40 victims); Prosecutor v. Setako, ICTR-04-81-A, Judgment (AC), 28
September 2011, para. 301.
89 Prosecutor v. Lukić & Lukić, IT-98-32/1-A, Judgment (AC), 4 December 2012, para. 537-538.

28


which they were targeted; and whether the killings were aimed at the collective

group rather than victims in their individual capacity”.90

60. It may also be possible to aggregate separate incidents of killings in order to

constitute a mass killing for the purpose of extermination where the incidents are

part of the same operation91 or attack on the civilian population.92 While it is not

required that the killings be committed “on a vast scale in a concentrated location

over a short period of time”93:

[a]s a general matter, the element of killing on a large scale cannot be

satisfied by a collective consideration of distinct events committed in
different locations, in different circumstances, by different perpetrators,
and over an extended period of time, i.e. a period of two months.94

61. When examining whether extermination has occurred as a result of mass starvation

in Yemen, it will be important to look to the temporal and geographical proximity of

the killings; to similarities between the deprivation of similar items or death from

similar causes for example a particular mode of military operation or tactic by the

same actors or death from severe malnutrition or related diseases; and to the

organized and coordinated manner in which the killings occurred.95 The presence of

these factors may permit an aggregated approach to the killings for the purpose of

assessing the large-scale requirement.

90 Prosecutor v. Lukić & Lukić, IT-98-32/1-A, Judgment (AC), 4 December 2012, para. 538,
Prosecutor v Stanišić & Simatović, IT-08-91-A, Judgment (AC), 30 June 2016, para. 1022;
Prosecutor v Niyiramasuhuko et al., ICTR-98-42-A, Judgment (AC), 14 December 2015, para.
2123.
91 Prosecutor v Stanišić & Simatović, IT-08-91-A, Judgment (AC), 30 June 2016, para. 1022.

92 Prosecutor v. Tolimir Judgment (AC), para. 150; Prosecutor v. Popović et al., IT-05-88-T,

Judgment (TC), 10 June 2010 (‘Popović Trial Judgment’), para. 805.

93 Prosecutor v. Milomir Stakić, No. IT-97-24-A, Judgment (AC), 22 March 2006 (‘Stakić Appeals

Judgment’), para. 259.

94 Prosecutor v. Karemera et al., ICTR-98-44-A, 29 September 2014, Judgment (AC), para. 661;

Bagosora et al. v. Prosecutor, Judgment (AC), ICTR-98-41-A, 14 December 2011, para. 396;
Prosecutor v Stanišić & Simatović, IT-08-91-A, Judgment (AC), 30 June 2016, para. 1022.
95 Prosecutor v. Popović et al., IT-05-88-T, Judgment (TC), 10 June 2010, para. 805.

29


62. Whether an aggregated approach is appropriate or whether the killing is perpetrated

directly or indirectly, by act or by omission, it must in all cases be established that the

perpetrator meant to engage in the conduct which caused the death(s) and that he or

she either intended to cause death or knew that death would occur in the ordinary

course of events.96

63. When considering the siege tactics by the Houthis and the effect of the Saudi-led

Coalition’s blockade, it will be important to consider the nature of the specific

conditions to which the victims were subjected and the length of time to which they

were subjected to those conditions. This may serve as circumstantial evidence

relevant to establishing extermination under the Rome Statute as it relates to the

infliction of conditions of life (i.e., the requirement that the perpetrator calculate “to

bring about the destruction of part of a population” 97).

iii. Other inhumane acts

64. In addition to the usual chapeau elements of a CAH, other inhuman acts under

article 7(1)(k) of the Rome Statute has three specific elements:98

(i) The perpetrator inflicted great suffering, or serious injury to body or

to mental or physical health, by means of an inhumane act;
(ii) Such act was of a character similar to any other act referred to in
article 7(), of the Rome Statute; 99 and
(iii) The perpetrator was aware of the factual circumstances that
established the character of the act.

65. The ICC has explained that this crime covers “serious violations of international

customary law and the basic rights pertaining to human beings, drawn from the

96 Article 30, Rome Statute. For a discussion on the meaning of the term “in the ordinary
course of events” Article 30 and intent see paras 78-81 below.
97 Tolimir Judgment (TC), para. 740, described in the context of genocide by deliberately

inflicting conditions of life calculated to bring about physical destruction.

98 Elements of Crimes, Crimes Against Humanity, Article 7(1)(k).

99 Elements of Crimes, Crimes Against Humanity, Article 7(1)(k), fn. 30.

30


norms of international human rights law, which are of a similar nature and gravity to

the acts referred to in article 7(1) of the Statute”.100

66. Inhumane acts have been considered in the context of starvation related offences

whereby an intentional deprivation of adequate food, hygiene and medical care was

found to be inhumane. 101 The deprivation of food and water together with

deprivation of adequate shelter, medical assistance, and the subjection of an

individual to unacceptable sanitary conditions was held to be an attack against

human dignity falling of sufficient severity to be considered as a crime against

humanity, namely an “other inhumane acts”.102 Similarly, the DPRK Report held that

knowingly causing prolonged starvation was an inhumane act constituting a CAH.103

67. This CAH has a residual status that must be interpreted conservatively and not used

“to expand uncritically the scope of crimes against humanity.”104 If the conduct could

be charged as another specific CAH it should do so. 105 Thus, this CAH will only be

utilised in the event that the aforementioned CAHs or war crimes cannot reasonably

be pursued. Whether the conduct is more appropriately subsumed under other

existing offences will be determined on a case-by-case basis’.106

100 Prosecutor v. Katanga and Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the confirmation
of charges, 30 September 2008, para. 448.
101 Prosecutor v. Duch, Case 001, 001/18-07-2007/ECCC/TC, Judgment (TC), 26 July 2010, para.

372; Case No. 004/1, Closing Order: [under appeal review] Starvation as an inhumane act the
para, 77.
102 Case No. 004/1, Closing Order: [under appeal review] Starvation as an inhumane act, para.

77.
103 OHCHR, Report of the Commission of Inquiry on Human Rights in the Democratic

People's Republic of Korea, UN Doc. A/HRC/25/63 (‘Report on Human Rights in the

Democratic People’s Republic of Korea), parapara. 76; Prosecutor v. Nikolic, Case No. IT-94-2-I,
December 2003, para. 69; Prosecutor v Knrojelac 15 March 2002, IT-97-25-Trial Judgment ,
paras. 9, 440 and 552(ii), finding the accused guilty of the inhumane act of starving detainees.
64 Prosecutor v. Muthaura et al., ICC-01/09-02/11-382-Red, Decision on the Confirmation of

Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012 (Muthaura
Decision on Confirmation of Charges,), para. 269.
65 Ibid, para. 269.

66 Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Trial Judgment (TC), 7 June 2001 (Bagilishema

Trial Judgment), para. 92.

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III. Circumstantial Evidence

68. Every conflict presents unique challenges to evidence collection and accountability

for international crimes. On-going hostilities will often mean that contemporaneous

evidence is not gathered, crime-scenes are not inspected and witnesses are not

identified or spoken with. Militants who may provide evidence may have biased

agendas. First responders to atrocities have different priorities and significantly are

not trained investigators. In the most volatile environments, on the ground reporting

may be limited or non-existent. The concurrent involvement of multiple sovereign

states can limit the access of investigators to documentary evidence. Enforcement

mechanisms lack the leverage they need to compel the production of these types of

probative documents or to otherwise bring about compliance with requests for

assistance. Issues of national security often override obligations to assist, or act as

excuses to ignore such obligations. Furthermore, the tendency of conflicts to last for

years will very often result in significant delay before evidence gathering can begin

in earnest. Whilst each conflict is unique, most share these characteristics. Evidential

challenges are thus familiar to international investigations and prosecutions, and ICL

jurisdictions have developed means to overcome them.

69. Alluding to at least one of the consequences of prosecuting crimes committed during

an armed conflict, the ICTY Trial Chamber has observed that:

The Trial Chamber has been conscious, throughout, that evidence about facts
that occurred ten or more years prior to giving evidence, involves inherent
uncertainties due to the vagaries of human perception and recollection.107

70. In the context of Yemen, we have been apprised of some of the particular challenges

faced by relevant civil society actors seeking to gather sufficient evidence to secure

justice for victims of atrocity crimes. Our understanding is that these include

difficulties in locating direct evidence for the purpose of: 1) drawing linkages

between specific incidents of starvation and the actions of responsible perpetrators;

2) ruling out non-human factors in establishing causation of famine; 3) establishing

107 Prosecutor v. Radoslav Brdanin, IT-99-36-T, Judgment (TC), 1 September 2004, para. 25

32


remote responsibility through a chain of command or de facto superior-subordinate

relationships; and 4) disentangling legitimate from illegitimate military operations,

including through the application of the principle of proportionality. The current

unavailability of direct evidence in relation to these issues is not exceptional, nor

does it constitute an insurmountable barrier to the successful investigation and

prosecution of deliberate acts of starvation under the framework of ICL.

71. Few criminal prosecutions at the leadership level benefit from direct evidence of

criminal intent and it is routine, therefore, to use circumstantial evidence in its

place.108 Further, it is equally applicable to all such criminal offences as enunciated

above. As noted by the ICTY Trial Chamber in Martić:109

[C]ircumstantial evidence may be necessary in order to establish an

alleged fact, particularly in criminal trials such as those before this
Tribunal, where there is often no eye-witness or conclusive documents
relating to a particular alleged fact. The Trial Chamber does not consider
circumstantial evidence to be of less value than direct evidence. The Trial
Chamber further considers that while individual items of evidence by
themselves may be insufficient to establish a fact, when taken together,
they may be revealing and decisive.

108 See, for example, Galić Appeals Judgment, para. 218; Prosecutor v. Jean-Pierre Bemba Gombo,
ICC-01/05-01/08-3343, Judgment Pursuant to Article 74 of the Statute, 21 March 2016 (Bemba
Gombo Judgment), para. 238-239; Vasiljević Appeals Judgment, para. 120; Krstić Appeals
Judgment, para. 41; Kvočka Appeals Judgment, para. 237.
109 Prosecutor v. Milan Martić, IT-95-11-T, Decision adopting guidelines on the standards

governing the admission of evidence, 19 January 2006 (‘Martić Decision on standards

governing the admission of evidence’), para. 10. See also, Desert Palace, Inc. v. Costa, 539 US
90, in the United States Supreme Court: “[t]he law makes no distinction between the weight
or value to be given to either direct or circumstantial evidence” (quoting, O'Malley, J. Grenig,
W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000). Holland v.
United States, 348 U.S. 121 (1954); R v Exall, United Kingdom (1866). See, however, Bemba
Gombo Confirmation of Charges, para. 49-54, stating that a single piece of indirect evidence
does hold the same probative value as a single piece of direct evidence [emphasis added].
and is generally accepted that the criminal standard of proof (beyond a reasonable doubt)
may be established through direct evidence of a fact or, where such evidence is unavailable,
through circumstantial evidence. Prosecutor v. Mucić et al. (‘Čelebići case’), IT-96-21-A,
Judgment (AC), 20 February 2001 (‘Čelebići Appeals Judgment’), para. 458. See also, for
example, Prosecutor v. Vojislav Seselj, MICT-16-99-A, Judgment (AC), 11 April 2018 (‘Seselj
Appeals Judgment’), para. 63; Prosecutor v. Popović et al., IT-05-88-A, Judgment (AC), 30
January 2015 (Popović Appeals Judgment), para. 1369; Prosecutor v. Prlić et al., IT-04-74-A,
Appeals Judgment, Volume II, 29 November 2017 (Prlić Appeals Judgment, Vol. II), para.
1994; Kupreskić Judgment (AC), para. 303.

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72. Building a case based upon circumstantial evidence does not diminish the need to

meet the criminal standard of proof beyond reasonable doubt.110 Thus, the rule of

evidence that permits an inference based upon circumstantial evidence retains the

standard that the conclusion reached on the basis of circumstantial evidence, must be

the only reasonable inference available on the evidence taken as a whole.111

73. In addition to the factors highlighted below, proof of intent, including specific intent,

may be inferred from facts and circumstances including:

the general context, the perpetration of other culpable acts

systematically directed against the same group, the scale of
atrocities committed, the systematic targeting of victims on
account of their membership of a particular group, or the
repetition of destructive and discriminatory acts.112

74. Whilst this threshold is also well established in domestic jurisdictions, on analysis,

the application of what is a reasonable alternative inference has undoubtedly been

applied with greater flexibility in international prosecutions. Inferences are drawn in

circumstances were multiple alternative inferences appear to exist, but are not

considered reasonable in their particular context. This exercise involves tribunals

situating the facts in front of them in their particular political, social and/or military

context, as the case may be. Factual findings that eschew certain possible inferences

110 Prosecutor v. Mitar Vasiljević, IT-98-32-A, Judgment (AC), 25 February 2004 (‘Vasiljević
Appeals Judgment’), para. 120; Prosecutor v. Radislav Krstić, IT-98-33-A, Judgment (AC), 19
April 2004 (‘Krstić Appeals Judgment’), para. 41; Prosecutor v. Kvočka et al., IT-38-90/1-A,
Judgment (AC), 28 February 2005 (Kvočka Appeals Judgment), para. 237.
111 See, generally, Stakić Judgment (AC), para. 219; Prosecutor v. Mugenzi & Mugiraneza, ICTR-

99-50-A, Appeals Judgment, 4 February 2013 (‘Mugenzi & Mugiraneza Appeals Judgment’)
para. 88. See also, Prosecutor v. Galić, IT-98-29-A, Judgment (AC), 30 November 2006 (‘Galić
Appeals Judgment),para. 218; Čelebići Judgment (AC), para. 458. See also, Seselj Appeals
Judgment’, para. 63; Popović Judgment (AC), para. 1369; Prlić Appeals Judgment, Vol. II, para.
1994; Kupreskić Judgment (AC), para. 303.
111 See, for example, Galić Appeals Judgment, para. 218; Prosecutor v. Jean-Pierre Bemba Gombo,

ICC-01/05-01/08-3343, Judgment Pursuant to Article 74 of the Statute, 21 March 2016 (Bemba

Gombo Judgment), para. 238-239; Vasiljević Judgment (AC), para. 120; Krstić Appeals
Judgment, para. 41; Kvočka Appeals Judgment, para. 237.
112 Prosecutor v. Goran Jelisić, IT-95-10-A, Judgment (AC), 5 July 2001 (‘Jelisić, Appeals

Judgment’), para. 47. See also, Brđanin Judgment (TC), para. 704: “[T]he specific intent for
genocide can be inferred from the facts, the concrete circumstances, or a ‘pattern of
purposeful action’.”

34


that on their face appear reasonable, owing to the “realities that existed on the

ground”, are not uncommon.

75. For example, in the Galić case the ICTY Trial Chamber was required to consider

whether or not the defendant, a former commander within the Army of the Serbian

Krajina (“SVK”), had ordered the shelling and sniping of civilians during the Siege of

Sarajevo.113 There was no direct evidence of any orders having been given;114 the

Prosecution therefore asked the Trial Chamber to infer the existence of orders based

upon the totality of the circumstances. In finding that General Galić had indeed

issued unlawful orders the Trial Chamber relied on the following circumstances:

a. That cease-fire arrangements were implemented speedily, including

in “one of the most notorious ‘sniping’ places in Sarajevo”, indicating

that the command had “total and absolute control over their military

machines”;115

b. That the snipers appeared to be “well-coordinated”;116

c. The reduction in sniping activity if complaints were communicated to

the command;117

d. That patterns of sniping developed whenever the demands of the SVK

command were not met;118

e. Patterns of indiscriminate shelling, not directed towards military

targets, which a witness concluded was designed to “terrorise the

civilian population”;119 and

f. The efficiency and effectiveness of the reporting and monitoring

systems of the SVK.120

113 Galić Appeals Judgment, paras 734-746.
114 Ibid, para 739.
115 Ibid , para. 734.

116 Ibid

117 Ibid

118 Ibid, para 735.

119 Ibid, para 736.

120 Ibid,para. 743

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76. In view of all the circumstances, the Trial Chamber inferred that General Galić has

issued unlawful orders.121 It rejected the inference that soldiers had acted “out of

control”122 as well as the significance of countervailing evidence including the lack of

any direct written order.123 While the focus of the Galić example was on ‘ordering’ as

a mode of liability, it is well established under ICL that proof of all forms of liability

may similarly be established on the basis of purely circumstantial evidence.124

77. The GEE may want to consider drawing parallels between the Galić case and high-

level suspected perpetrators in Yemen. As in Galić, evidence of certain patterns of

conduct resulting in starvation of civilians, evidence of the publicity given to the

likely criminal consequences of such patterns of conduct, and evidence of the

continuation of the impugned practices in light of this publicity, could together serve

to establish an inference of deliberate intent to allow starvation crimes to pervade in

the context of hostilities in Yemen. Such an inference would also be relevant to

elements of applicable modes of liability.

Intent as an appreciation of virtual certainty

78. The principle of intent as an appreciation of virtual certainty is well established in

domestic criminal law of England and Wales.125 The traditional form of (direct) intent

is established where the defendant intended a specific consequence. In the criminal

jurisdiction of England and Wales, intent may also be found where the defendant

appreciates as a "virtual certainty (barring some unforeseen intervention)"126 that his

or her actions would result in a particular consequence (without necessarily having

directly intended it).127

121 Ibid,para 741
122 Ibid,para 741
123 Ibid,para 740

124 Ibid, para. 171.

125 Reg. v Nedrick [1986] 1 W.L.R. 1025, as approved by R v Woollin [1999] 1 Cr App R 8, HL.

126 Reg. v Nedrick [1986] 1 W.L.R. 1025.

127 R v Woollin [1999] 1 Cr App R 8, HL.

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79. The ICC appears to have adopted this form of oblique intent. Article 30 of the Rome

Statute sets out the standards of mens rea that apply to all crimes:

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that

consequence or is aware that it will occur in the ordinary course of
events.

3. For the purposes of this article, ‘knowledge’ means awareness that a

circumstance exists or a consequence will occur in the ordinary course of
events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

80. In Lubanga, Article 30 has been interpreted as a form of criminal intent that requires a

person to know that his or her actions will necessarily bring about the consequence

in question, barring an unforeseen or unexpected intervention or event that prevent

its occurrence. In other words, it is practically impossible for him or her to envisage

that the consequence will not occur.128 In Katanga, it was held that the standard for

the foreseeability of events is virtual certainty.129

81. Thus, one can readily see how the role of the media, the UN, humanitarians, military,

diplomats and experts, in contemporaneously reporting on the on-going

humanitarian catastrophe in Yemen would become centrally relevant to proving

intent in any prosecution. 130 It may serve to remove the difficulty of proving intent

128 Prosecutor v. Thomas Lubanga Dylio, ICC-01/04-01/06 A 5, Public Redacted Judgment on the
appeal of Mr Thomas Lubanga Dylio against his conviction, 1 December 2014 (‘Lubanga
Appeals Judgment’), para. 447, fn. 827. The “awareness that a consequence will occur in the
ordinary course of events” means that the participants anticipate, based on their knowledge
of how events ordinarily develop, that the consequence will occur in the future. This
prognosis involves consideration of the concepts of “possibility” and “probability”, which are
inherent to the notions of “risk” and “danger”, para. 1012.
129 Katanga Trial Judgment, para. 777.

130 In response to its call for submissions, we expect that the GEE will receive a wide range of

documentation and/or information pertaining to IHL and IHRL violations committed in

Yemen since 2014, some of which is currently in the public domain, including documentary
information relating to the withholding of government salaries; (see the UN Country Team
(‘UNCT’) Strategic Framework that reports several instances of withheld salaries in the civil
service sector. The UNCT framework is one of the few documents with up to date social and

37


through direct evidence, in circumstances where other reasonable inferences, such as

the pursuit of military objectives, may conceivably be available and replace it with a

more contextual demonstration of relevant and probative acts being pursued in

knowledge of the virtual certainty of the humanitarian consequences. It may well be

that in the Yemeni context, this construction of oblique intent would become more

concrete, in light of vast pledges in humanitarian aid by the Saudi-led Coalition, who

in January 2018 deposited $2 billion in Yemen’s central bank to prop up the currency

and “help stave off hunger”131. Even in the face of alternative inferences that could be

drawn from such humanitarian action, such conduct highlights the Saudi-led

Coalition’s appreciation of the humanitarian crisis including life-threatening

malnutrition rates.

Pattern Evidence

82. Pattern evidence may also be used to infer elements of the offence, when used in

combination with direct or other circumstantial evidence.132 Patterns of behaviour

can be used to establish a likelihood that certain conduct occurred, to establish intent

or indeed to rule out defence explanations, such as on the basis of coincidence.133

economic data covering the topic of unpaid salaries in Yemen. UN Strategic Framework for
Yemen 2017 - 2019 (pp. 1-25, Rep); information from humanitarian actors, the World Food
Programme, the World Health Organization and Mwatana Organization for Human Rights;
and, reliable journalism and testimonies, notably from Iona Craig. These types of
documentation may provide an adequate basis to support a finding of deliberate starvation.
131 Reuters News, 17 January 2018, accessed at 31 May 2018.

132 see UN MICT Rules of Procedure and Evidence MICT/1, Rule 114(A): “Evidence of
Consistent Pattern of Conduct (A) Evidence of a consistent pattern of conduct relevant to
serious violations of international humanitarian law under the Statute may be admissible in
the interests of justice.”
133 See, e.g., Prosecutor v. Pavle Strugar, IT-01-42-T Decision on the Defence Objection to

the Prosecution’s Opening Statement Concerning Admissibility of Evidence, 22

January 2004, (‘Strugar Decision on the Defence Objection to the Prosecution’s Opening
Statement Concerning Admissibility of Evidence’) p. 3; Prosecutor v. Kunarac et al., IT-96-23-T
& IT-96-23/I-T, Judgment (TC), 22 February 2001 (‘Kunarac Judgment’), para. 589; and
Kupreskić Appeals Judgment, para. 322.
133 Prosecutor v. Nahimana, ICTR-99-52-A, Separate Opinion of Judge Shahabuddeen on

‘Decision on the Interlocutory Appeals’ (‘Nahimana Separate Opinion of Judge Shabuddeen’),

5 September 2000, para. 20.

38


There are limits to its use, however: essential elements cannot be proven solely on

the basis of pattern evidence.134

83. Domestic common law jurisdictions also allow for the admissibility of ‘similar fact

evidence’ for purposes such as proving intent or disproving an accident where the

evidence goes beyond showing a propensity to commit the crime and “points in

some other way towards the commission of the offense in question”.135 Nevertheless,

the admissibility of any piece of evidence may still be excluded if its prejudicial effect

outweighs its probative value.136

84. Pattern evidence could also serve as a useful vehicle for the GEE and future

accountability mechanisms to construct the requisite intent for starvation offences,

for example in demonstrating the probability that certain acts were likely to be

intentional, because they formed part of a pattern. By way of an example, were

conclusive findings to be made against the Saudi-led Coalition relating to

indiscriminate attacks on civilian populations, this could arguably stand as ‘similar

fact evidence’ of attacks against objects indispensible for the survival of civilians,

such as food producing factories or marketplaces.

Causation

85. As previously mentioned, the GEE will need to disentangle the multi-causal aspects

of starvation in order to establish causation. For the purposes of these submissions,

we seek to highlight the well-established legal principle in ICL and domestic

134 Character evidence does not go to the “acts and conduct of the accused as charged in the
indictment” and may be admitted pursuant to Rule 92 bis. However, evidence which pertains
to the mens rea of the accused may not be admitted under ICTY Rule 92 bis, at least without
cross examination. Prosecutor v Stanišić & Župljanin, No. IT-06-91-T, Decision Partially
Granting Stojan Župljanin’s Motion for Admission of Evidence Pursuant to Rule 92 bis (21
July 2011), para. 26
135 Thompson v. R. (1989), Australian High Court, 86 A.L.R.; See also, US Federal Rules of

Evidence, Rule 404; see also US Federal Rules of Evidence, Rule 404. See also, e.g., Thompson
v. R. (1989), Australian High Court, 86 A.L.R.
136 US Federal Rules of Evidence, Rule 403; Thompson v. R. (1989), Australian High Court, 86

A.L.R.

39


jurisdictions, known as the ‘eggshell skull rule’,137 by which pre-existing conditions

will not automatically break the chain of causation. As held by the Trial Chamber in

Čelebići:138

[I]t is a well-recognised legal principle that a wrongdoer must take the

victim as he finds him. Thus, if a perpetrator by his acts shortens the life
of his victim, it is legally irrelevant that the victim may have died shortly
thereafter from another cause. To establish criminal liability in situations
where there are pre-existing physical conditions which would cause the
victim’s death, therefore, it is only necessary to establish that the
accused’s conduct contributed to the death of the victim.139

86. This finding was subsequently adopted by the Appeals Chamber of the ECCC in

Case 002:140 In Case 002, the Trial Chamber convicted Nuon Chea of extermination on

the basis that several thousand people had died as a result of “killings, starvation

and exhaustion” during an evacuation of the population.141 Nuon Chea in his appeal

before the Appeals Chamber, argued the multiplicity of plausible causes of death,

breaking the chain of causation.142

87. The Appeals Chamber rejected Nuon Chea’s arguments as “inapt” in breaking the

lack of a causal link between the conditions of the evacuation and the death of the

victims.143 The Chamber determined, in accordance with Čelebići, that it is irrelevant

whether the victims might have died for other reasons, or that the conditions

generally in the area were dire. The civilians had died because of the conditions to

which they were exposed to during the evacuation”. 144 A similar approach to

causation would reduce the relevance of any defence argument that Yemeni civilians

might have died for other reasons for example, during the total blockade in

November 2017, or that pre-war malnutrition rates in Yemen, necessarily break the

137 also known as the 'thin skull' Dulieu v. White & Son [1901] EWHC KB 1, para.12.
138 Čelebići Trial Judgment, 16 November 1998 (‘Čelebići Trial Judgment’), para. 909.
139 Čelebići Trial Judgment, para. 909.

140 Prosecutor v. Khieu Samphan and Nuon Chea, 002/19-09-2007-ECCC/SC, Appeal Judgment, 23

November 2016 (‘Khieu & Nuon Appeal Judgment’), para. 534.

141Khieu & Nuon Appeal Judgment, para. 529.

142 Ibid para. 531.

143 Ibid para. 535.

144 Ibid para. 535.

40


chain causation. The application of this principle should serve to alleviate some of

the concerns previously raised at paragraph 70 that the multi-causal nature of

starvation renders it too complex to prove to a criminal standard.

88. The priority of the GEE will be to collect as much reliable and probative evidence as

possible with a view to building large parts of any prosecution based upon

circumstantial evidence. In the final analysis, a case will be demonstrated through

the piecing together of competing inferences premised on the scale of the

humanitarian crisis and the evidence of culpable conduct as viewed through

competing facts. These will be many and far ranging, including considerations that

might appear contextual in other international prosecutions, such as the broadly

publicised fact that in Yemen 6.8 million people are severely food insecure and in

need of urgent life-saving emergency food support,145 evidence of the diversion of

750,600 tons of commercial and humanitarian during the total blockade,146 and other

factors that tend towards showing the inadequacy of humanitarian response as

moving from recklessness to gross negligence and finally towards intent. Though the

Yemeni conflict does present particular challenges in securing quality evidence, the

experience of international prosecutions is that similar challenges in obtaining

quality evidence have not prevented convictions being entered and upheld.

IV. Investigative and evidential requirements

89. This section outlines the nature and type of evidence that would benefit a

prosecution of alleged starvation within the GEE’s mandate. The investigative and

evidential requirements discussed are relevant to demonstrate the core of the Article

8 crime of starvation or the alternative CAH offences.

90. Given the multi-causal nature of starvation and the challenge of distinguishing those

that attract individual criminal responsibility from those that remain ostensibly

lawful, it is essential that those investigating and collecting the relevant information

145 WFP Yemen Facts and Figures, April 2017 – 31 March 2018.
146 UNSC Panel Report 2018, S/2018/68, p. 53, ft. 194.

41


take a highly focused approach to the elements of the offence and the nature and

type of information that may be relevant and probative of them. The crime of

starvation (as well as the alternative offences described above) require an approach

that recognises the serious challenges that arise from the ‘fog of war’ that may be

used by those responsible to mask or obscure causal relationships between action

and effect and the inferring of the relevant intent.

91. As stated above at paragraph 28, the evidence collection stage will be critical in order

to carefully addressing the material requirements, there is no reason to suppose that

a cumulative evidential picture cannot emerge that confronts these requirements and

is able to draw the required distinctions in furtherance of an effective prosecution.

92. Accordingly, investigations must be focused upon determining the following (non-

exhaustive) questions: (i) the conflict classification; (ii) which objects were deprived

(ii) the causes of deprivation (human and non-human, accident, reckless, negligently

or intentional); (iii) the precise (or likely) responsibility for the deprivation; (iv) the

significance any violation of the principles of distinction, proportionality and

precaution, including the extent to which military objectives were achieved and

civilians were adversely impacted i.e. the military objective question and the

concentric questions of proportionality as outlined above; and (v) the question of

whether targets of military action were for the use of armed forces, relying on

common sense inferences, for example, that food inside a military base is likely to be

deemed solely exclusively for the use of combatants,147 but also taking cognisance of

military objects that may have a predominantly civilian nature but which assist in

securing military objectives and therefore may be considered ‘dual use’.148

93. As outlined above at paragraphs 105-106, in our view, three categories of evidence

are required to enhance the chances of a successful prosecution.

147 Article 54(3)(a), Additional Protocol I, See International Committee of the Red Cross
(ICRC), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949, 17 October 1987, page 657, para. 2112.
148 Note Article 56 Additional Protocol I sets out some of the exceptions to this rule.

42


94. First, evidence demonstrating the targeting of indispensable objects. The

documentation collected by the UNSC149, The Protection Cluster150, The Yemen Data

Project151, Yemen’s Ministry of Agriculture and Irrigation, amongst others, detailing

the number and location of strikes would be relevant and probative.

95. Evidence of attacks or destruction of indispensible objects may be utilised by the

prosecution to preclude the suggestion that such attacks are mistaken or random

occurrences. The targeting of food-producing areas such as agricultural fields, farms,

livestock, foodstuff as well as wells or other water installations must be documented

through oral and documentary evidence.152 Award winning journalist Iona Craig

produces such testimonies in her documentation of the targeting of food supplies.153

The UNSC Panel Reports also cite interviews with staff members of UN agencies

based in Yemen which, alongside photographic and video evidence, show

humanitarian supplies being attacked or diverted.154 Documentation of the wilful

impediment of aid will be an essential foundation for understanding the likely

causes and establishing who or what is responsible for the deprivation. More

149 See UNSC Panel’s four annual panel reports, accessed 31 May 2018.
150 See host of documents, statistics and reports here, accessed 31 May 2018.
151 See The Yemen Data Project focusing on aerial bombardments from 2015 – 2016, accessed

at 31 May 2018.
152 See also attacks on fishing vessels as documented in Protection Vessels International, (16

September 2015) Weekly Maritime & Onshore Security Report 15 Sep 2015. See also images
obtained from individuals working in the Food factory in Nahda District, Sana’a that was
targeted on 9 August 2016.
153 https://www.theguardian.com/world/2017/dec/12/bombed-into-famine-how-saudi-air-
campaign-targets-yemens-food-supplies; http://www.ionacraig.com, Iona Craig has credible
first-hand testimony from inside Yemen’s feeding centres including Hodeidah, Sana'a, Taiz,
Lahij and Aden.
154 See for example UNSC Report 2016 S/2018/192, Houthi-Saleh forces systematically denied

civilians access to the basic necessities of life through a siege preventing access to goods,
water and medical supplies by blocking the main routes into the cities, p. 38, para. 134; also
annex 49, pp. 140-147, Houthi-Saleh forces have used snipers positioned atop buildings to
target people seeking safety, medical care or food. The sniper attacks also targeted people
providing humanitarian assistance. p. 37, para. 132; also annex 48, pp. 134-139, obstruction of
humanitarian assistance through the sale of aid on the black market in Ibb and Sana’a by
Houthi-Saleh forces and The Panel documented cases of Houthi-Saleh forces looting food aid
and temporarily taking control of United Nations offices in Aden and Sana ’a, p. 47, para. 179,
p. 48, para. 184; also annex 50, pp. 148-149.

43


quantitative data describing the humanitarian position in the light of both the Houthi

siege tactics or the Saudi-led Coalition’s blockade would be relevant and probative.

96. By way of example, in order to establish these minimum elements arising from the

aerial and naval blockade between 6 – 23 November 2017 across all of Yemen’s sea,

land and air ports, the following information could be highly relevant and probative:

a. which particular locations and items were most affected by the

blockade;

b. what, if any, proportion of essential supplies was prevented from

being unloaded, intentionally or recklessly spoiled and no longer

usable;155

c. was the distribution of aid already within the country during 6-23

November affected;156

d. to what extent did entry points under the control of Houthis, such as

Hudaydah remain closed;157

e. documentation corroborating this willful impediment by the Houthis;

and

f. any express or implied statements indicating a state or organisational

policy to intentionally deprived civilians of items.158

155 For example the UNSC 2018 Report S/2018/68, indicated that 750,600 tons of humanitarian
aid were diverted, it would be prudent to assess what percentage of food or therapeutic
feeding supplies were rendered useless during the blockade.
156 Noting that if there was adequate aid already in country which was able to be distributed

relatively freely it would offset the effect of the blockade. Whilst again noting that proof of
outcome is not a material element, it remains important to assess the flow of existing aid and
whether the blockade willfully hindered this, and whether this would be material for the
purposes of inference evidence and/or evidence of suffering or deaths.
157 Noting the UNSC Panel 2018 finding that “those under the control of the Houthis, such as

Hudaydah, remained closed for weeks”. This had the “effect of using the threat of starvation
as an instrument of war.” UNSC 2018 Report S/2018/68, p.3, noting the reference to
confidential annex 71 that alludes to further detail on the obstruction of humanitarian
assistance arising out of the blockade.
158 Noting the similarities of this to statements by the Saudi-led Coalition which allegedly

stated it would prevent the delivery of aid to areas under Houthi-Saleh forces control, see
UNSC Report 2016 S/2018/192, p. 45, ft. 95-96; Annex 60, p. 180, ft. 121.

44


97. The greater the number of incidences of attacks on food producing areas, or food and

water infrastructure and storage or food convoys, the more difficult it will be for

anyone to claim that they were accidental or random. As demonstrated above,

international courts routinely assess intent from evidence of prima facie wrong-doing

that when repeated over time suggests intent. Multiple separate attacks each

attacking or destroying humanitarian objects or multiple diversions or refusals to

allow access to essential supplies when occurring within an a proximate time and

place and in a similar manner may be capable of reflecting intent, including a

deliberate campaign to starve.

98. Evidence that tends to show that attacks were aimed at legitimate military targets is

also important, even though in many circumstances it should be approached with a

degree of scepticism.159

99. The second category concerns proof of outcome. Although the attacks on

indispensible items will need to be evidenced (see below), there is no material

element requiring proof of actual starvation (in the context of starvation as a war

crime). However, in practice, we advise that an effective prosecution will need to rely

upon this evidence as a direct and indirect means of showing the required causation,

the relevant intent and the scope of the starvation crime under consideration.

Accordingly, the lack of this requirement as a material element in the Rome Statute

and Elements of Crimes, does not in our view, materially reduce its importance in

the practical context of an international criminal trial.

159The UNSC Panel Reports assess the reliability of Joint Investigative Assessment Team
(“JIAT”) investigations into the lawfulness of the Saudi-led Coalition’s targets. The UNSC
Panel has repeatedly invited the warring parties, in particular the Saudi-led Coalition, to
provide verifiable information as to the lawfulness of their attacks, including information as
to the intended target. Notably, the UNSC Panel 2018 report includes a comparison between
findings of the UNSC Panel’s and JIAT’s and concludes that there is a lack of “transparency”
undermining JIAT’s credibility, and further that specific “technical mistakes” resulting in
civilian casualties lacked “convincing or substantive details.” 159 In our view, a rigorous
assessment as to whether purported legitimate military objectives could have been achieved
with a lower risk of civilian casualty is important.

45


100. Thus, human rights assessments from a variety of sources will be critical. Any

adjudicator, including the GEE, will be assisted by relevant studies. Accordingly, the

2017 ‘War Impact on Food Security in the Tihama Region’160 (addressing the statistics

that demonstrate the impact of the war on food consumers and food producers in

two wadis (valley regions) in Yemen and the hospital and therapeutic feeding centre

records showing the numbers of patients suffering from malnourishment or other

forms of deprivation); the World Food Programme, and The World Health

Organization (“WHO”) (observing, inter alia, that from January to December 2017

more than 4430 children under the age of 5 were suffering from severe acute

malnutrition with complications and received essential treatment in the WHO

stabilization centres across 10 governates in Yemen161), alongside similar data from

Yemen’s Ministry of Health; Oxfam; Save the Children; and local civil society groups

such as Mwatana Organization for Human Rights162 will assist in illuminating the

scale of the problem and correspondingly the intention at the heart of the crime.

101. Finally, the requirement that the deprived items are indispensable

presupposes that any prosecutor will need to focus on demonstrating the nature of

those items, how they were essential to survival, and how they were attacked or

otherwise were prevented from reaching their intended beneficiaries. There will be a

variety of expert evidence to consider, much of it from humanitarian organisations

working on the ground concerning the manner in which humanitarian programs

have operated and the various ‘natural’ or human driven obstacles that have

undermined those relief efforts.

160 ‘The War Impact on Food Security in the Tihama Region. Case Study: Wadi Zabid and
Wadi Siham, November 2017 Assessment Report, Flood-Based Livelihoods Network
Foundation.
161 World Health Organisation Annual Report 2017 p. 28; see also Médecins Sans Frontières

(“MSF”) 2016 Report ‘Yemen’s Health-Care under Siege in Taiz’, pp.32.33, which
documented that between January – December 2016, MSF treated 2270 outpatients with
moderately acute malnutrition and admitted 390 as inpatients with serve acute malnutrition
in their therapeutic feeding centre in Taiz.
162 Mwatana released their 2017 Annual Report in May 2018, which includes a section on

starvation investigation and documentation. English translation pending.

46


102. The evidence may need to explain the intended recipients of the specific aid

items and their route from source to destination and the points at which they were

prevented from reaching their destination. The headlining statistics and observations

from the humanitarian community will no doubt be relevant and probative. The fact

that in November 2017 a wide ranging group of humanitarian organizations working

in Yemen documented that in excess of 2.2 million children in Yemen were

malnourished and of those 385,000 children were suffering from severe malnutrition

requiring therapeutic treatment will no doubt prove critical to a plethora of issues

relevant to an assessment of the nature, severity and scope of the starvation163

103. However, this type of evidence will require support from other more specific

evidence that assists in understanding how the blockade has impacted food and

humanitarian supplies in besieged areas, including (comparative) expert analysis

contrasting and comparing these impacts and more general in-country trends

concerning malnutrition and existing food supplies. It will be critical to not only

understand the pre-war malnutrition and food insecurity situation to enable causal

links to be established between the war and current malnutrition data, but also the

humanitarian and food situation that exists in other regions that are less impacted by

military action or effects.

104. Finally, the third broad category of essential evidence concerns causation

evidence. This is likely to be the most challenging evidence to find and to ensure its

probative value. As discussed above the evidence is needed to confront a multiplicity

of potential causal relationships that might offer alternative, ‘innocent’ explanations

for the absence or destruction of indispensible items and the consequential

deprivation and suffering of the civilian population. As foreshadowed by the

challenges of distinguishing between legitimate (IHL compliant) military offensives,

the multiple causes of famine, and the deliberate starvation of civilians, this evidence

will need to be documented with precision and with focus on the distinctions that

163Statement by 23 humanitarian organisations and agencies on 8 November 2017 following
the complete closure by the Saudi-led Coalition of Yemen’s airports, seaports and land
crossings.

47


will be required to be drawn. At the center of this investigation, will be a focus on

distinguishing the moment when warring parties may legitimately claim that the

war and natural causes are primarily responsible for adverse impacts effects on

trade, food production and impediments to the delivery of supplies to civilians from

that when their causative role may be more clearly viewed and the relevant intention

may be inferred.

105. This type of evidence may take a variety of forms and it is not possible or

wise to seek to circumscribe it. Obviously, the initial search should focus upon the

most direct evidence that is available. This will include:

a. Express or implied statements from the warring parties evidencing

any deliberate policy to use starvation as a tool or otherwise to

deprive civilians in besieged areas;

b. Express or implied statements from the warring parties indicating

awareness of indiscriminate attacks on civilian populations, including

factories, food producing areas and related infrastructure;

c. Corroboration or further statements from the warring parties as to the

lawfulness and legitimacy of their conduct”;164 and

d. Testimonial evidence from those on the ground, humanitarian

workers or those involved in the distribution of aid detailing the

obstruction of objects indispensible to survival and the consequential

effect they witnessed of these specific acts of deprivation, suffering or

starvation.

106. The three categories of evidence outlined above at paragraphs at 105-106 are

not intended to be exhaustive. As the matrix shows, much will depend on the

circumstances and the relevant context. Prosecutors and those involved in

164For example corroboration of statements from the Houthi-Saleh forces’ political office that
“all airports, ports, border crossings and areas of any importance to Saudi Arabia and the
UAE will be a direct target of our weapons, which is a legitimate right” as stated in UNSC
Report 2016, S/2018/192, p.297, para 10(b), fn 9.

48


accountability mechanisms such as the GEE are likely to want to paint as full a

picture as possible wherein criminal intent may emerged from complex and

competing facts wherein alternatives become less and less plausible. International

prosecutions do not deal in absolute certainties: there is rarely a “smoking gun”.

Incrementally drawn inferences based upon circumstance and fragments are the

currency.

107. The task confronting the GEE and any accountability mechanism for Yemen

will be to show through a broad swathe of circumstantial evidence, that an inference

may be drawn, and that the named suspects intended the crime of starvation and are

individually criminally responsible for the myriad of consequential suffering and

deaths.

V. Conclusion

108. Whilst the information reviewed is strongly suggestive of the crime of

starvation, which in our view offers a reasonable basis to investigate further, GRC’s

submissions at this preliminary stage of evidence collection and investigation relate

to the practical tools available to assess the evidence in a robust investigation

pursuant to future accountability. What these submissions attempt to clarify is that

whilst every conflict presents unique challenges to evidence collection and

accountability for international crimes, these are familiar to international

investigations and prosecutions, and ICL jurisdictions have developed fair

approaches to address and overcome those difficulties. It is only when existing or

future legal mechanisms such as the GEE develop or create a better understanding of

starvation, or more generally when starvation enters the legal zeitgeist in the way

that sexual violence and gender based crimes (mercifully) now have, will

prosecutions produce a more singular definition of the crime of starvation, and those

thus far acting with impunity in starving civilians to death, will be held to account.

49


Respectfully submitted,165

Global Rights Compliance Managing Partner - Wayne Jordash QC

Senior Legal Consultant - Catriona Murdoch

1 June 2018

Significant contributions to these submissions were made from GRC Senior Legal
165

Consultants Joe Holmes and Lina Baddour.

50


PUBLIC ANNEX A

51

ILLUSTRATIVE EXAMPLES FROM THE UNSC PANEL ANNUAL REPORTS
2016-2018
Siege
2016 UNSC Panel Report S/2018/192
Period 7 April 2015 – 26 January 2016
Houthi-Saleh forces systematically
denied civilians access to the basic
necessities of life through a siege
preventing access to goods, water and
medical supplies by blocking the main
routes into the cities. (p. 38; Annex 49, p.
140, ft. 20-21, 30-31, 35-37)
In Ta’izz, the siege by Houthi-Saleh
forces has resulted in the intentional
restriction of commercial goods and
humanitarian assistance, which has left
the residents in dire need of food, water
and medical services. (p. 47, ft. 101-103)
On 1 July 2015, as a result of the siege,
the United Nations Inter-Agency
Standing Committee (IASC) classified
Ta’izz as facing food insecurity at
‘emergency’ level – one step below
famine on a five-point international
scale, but the highest level of
emergency classification. (Annex 49, p.
144, ft. 36)
- Began on 22 - “Yemen: International Committee of
March 2015, the Red Cross and Médecins sans
Ta’izz frontières alarmed by attacks on
country’s lifelines”, Médecins sans
frontières.
- “Statement of Humanitarian
Coordinator for Yemen, Johannes Van
Der Klaauw, on the dire situation in
Taizz City”, 24 October 2015.
- “Responding to Yemen’s
humanitarian crisis”, WFP Yemen
Situation Report, No. 18 (13 December
2015).
- Interviews with Yemeni refugees
from Ta’izz
- The Panel also relied upon
information from INGOs within
Ta’izz, United Nations agencies who
work in the logistical aspects of aid
delivery and distribution, along with
local sources who provide social
media commentary on the developing
humanitarian context in Ta’izz, in
particular providing updated
photographs of the result of the siege
and civilian casualties from the
conduct of hostilities.
- WFP Press Release, “WFP Appeals
To All Parties To The Conflict In
Yemen To Allow Food Distributions
In Ta ’izz”; Gulf News Yemen, “Local
NGOs say no aid reaching besieged
Yemen city”.
- Photograph on social media from a
local critic in Ta’izz, showing a Ta’izz
woman who had reportedly gone out
to purchase bread, having been shot
52


by Houthi-Saleh snipers.
- UN spokesperson Rupert Colville,
United Nations Radio, News in Brief
23 October 2015 (AM).
- MSF Media Statement (25 October
2015).
- Al Arabiya News (30 October 2015)
“Houthis Obstruct Humanitarian Aid
to Ta’izz”.
- United Nations, IASC PRINCIPALS
AD HOC MEETING – YEMEN, Final
Summary and Action Points (1 July
2015). The IASC met on 1 July 2015 to
decide on the activation of the
System-wide Level 3 (L3) Emergency
response in Yemen.
- Photograph Copyright to ICRC,
Yemen, Ta’izz, people gathering
around a water truck donated by a
philanthropist with their jerry cans to
fill water due to the lack of water for
several months, (28.08.2015, Wael Al
Absi, ICRC).
- Ta’izz social media photographic
updates of the impact of the water
shortage in Ta’izz dated October 2015.
- WFP (29 October 2015) “WFP Warns
Of Deepening Hunger In Southern
Yemen City Of Ta’izz”.

Blockade

2016 UNSC Panel Report S/2018/192

Period 7 April 2015 – 26 January 2016

The arms embargo by the Saudi-led - Security system - A United Nations official said that
Coalition on commercial and of authorisation humanitarian providers lacked the
humanitarian shipments to Yemen is and inspection, capacity to deal with the large
obstructing humanitarian assistance. port of Al numbers requiring food, medical and
Yemen relies on imports for 90 per cent Houdaidah other assistance because most of the
of its grain and other food sources. The - July/Aug 2015 country’s food and other needs had
deteriorating humanitarian context Airstrikes, port of been met through imports before the
corresponds directly to the conduct of Al Houdaidah conflict. In that regard, the blockade
53
hostilities, the obstruction of - Entry on commercial goods was directly

humanitarian assistance and their
intersections. However, even without
the issue of obstruction and conflict as a
key cause of inaccessibility,
humanitarian actors do not have the
capacity to provide for the large
amounts of required food, medicine and
fuel, all of which have been
substantively affected by the impact of
the commercial blockade.
• One clear example has been the
impact of the shortage of fuel, which
has had a knock-on effect on
electricity supplies, water pumping,
hospitals and inflation, having a
negative impact on purchasing
power in a domestic black-market
system where the prices of basic
essentials are exorbitant.
(p. 45, ft. 95-96; Annex 60, p. 180, ft. 121-
122, 125-131)
conditions, all exacerbating the humanitarian
Yemeni ports context.
- “United Nations: more than 21
million people in Yemen need basic
humanitarian aid”, United Nations
News Service, 24 November 2015.
- Panel interviews with a senior
United Nations Official working in
Yemen on the coalition’s blockade.
- Water pumps closing due to lack of
electricity supply: The Guardian, (5
June 2015) “Saudi-led naval blockade
leaves 20m Yemenis facing
humanitarian disaster”; see also UK
FCO Press Release (26 March 2015):
The current situation in Yemen.
- A UNDSS Report dated 10
September 2015, advised that
shipping to Yemen is “grinding to a
halt as Saudi-led navy inspections
hold up cargoes, shippers say,
depriving it of desperately needed
fuel and food as aid groups warn of
famine.”
- Many shipping companies have
stopped bringing cargo to Yemen and
those that do face incalculable delays
and searches: Information obtained
from a US Naval Report on
Humanitarian Situation and
Commercial Shipping.
- Hellinic Shipping News (7 December
2015) “Gard Alert: Yemen – port
security situation – update”.
- Information obtained from UN
interviews in consultation with WFP
figures related to shipping delays
since March 2015. Interviews
conducted with WFP in June, August
and December 2015.
- Graphs compare the number of ships
arriving in Aden and Al Houdaidah
in 2014 and 2015, drops in arrivals
coincide with events of the conflict
and the coalition’s blockade: Panel
Graphs based on data provided by
54


Lloyd’s List Intelligence through a UN

licence for the panel.
- A confidential member state source
advised the Panel that aid diversion
and securitization are clearly linked to
previous Coalition statements about
not allowing the delivery of aid to
areas of Houthi-Saleh forces control.
- The Houthi-Saleh forces maintained
the mechanism (the obstruction of
commercial vessels) by putting
restrictions on import and distribution
of fuel in their favour: The Head of
the Delegation of ICRC in Yemen
reported (12 October 2015) at the time,
that during September 2015, only 1
per cent of the country’s fuel needs
were imported into Yemen.
- After weeks of international
pressure, commercial shipping and
fuel began entering Al Houdaidah
(Nov 2015). OCHA reported on 18
December 2015, that November
imports of food had returned to pre-
crisis levels with 560,000 metric tons
(MT) imported into the country.
- Import levels are still insufficient to
meet in-country demand: OCHA,
Humanitarian Bulletin – Yemen, Issue
7 (Issued on 18 December 2015).

2018 UNSC Panel Report S/2018/68

Period 1 January 2017 – 31 December 2017

The Saudi-led Coalition imposed severe - 6 to 23 Nov 2017 Information from UNVIM and
restrictions on the imports of commercial LogCluster data.
and humanitarian goods from 6 to 23
November 2017. During the latter
period, over 750,600 tons of commercial
and humanitarian goods were diverted
from Yemen or their entry to the country
delayed.

The blockade is essentially using the

threat of starvation as a bargaining tool
and an instrument of war.
The Houthi forces are also using the

55


population as a pawn when they escalate

their strikes against Saudi Arabia,
knowing full well the brunt of reprisals
will be felt by the civilian population.
The Houthis are relying on public
condemnation of Saudi Arabia’s
reprisals to offset any liability on their
part for those actions.
(p. 53, ft. 194)

Airstrikes

2016 UNSC Panel Report S/2018/192

Period 7 April 2015 – 26 January 2016

The Saudi-led Coalition conducted air - 13 October 2015, - Confidential sources from inside
strikes targeting civilians and civilian Althineen Mahli Yemen, United Nations staff, non-
objects including markets, factories and Market (Souq) governmental organization staff,
food storage warehouses; and other - 31 March, Dairy expatriate journalists and refugees.
essential civilian infrastructure. The and Beverage - The Panel documented air strikes
Panel documented 119 coalition sorties Factory from interviews with refugees, non-
relating to violations of international (Hodaida) governmental organizations and
humanitarian law. (p. 39, ft. 64-65; - 4 July, Harad United Nations agencies, corroborated
Annex 47, p. 132; Annex 52, p. 152, ft. 56- marketplace by local sources, including
57; Annex 54, p. 159, ft. 59, 61; Annex 55, - 6 July, Alfayush organizations directly hit, and human
p. 161, ft. 62; Annex 56, p. 163, ft. 65-66; market rights organizations.
Annex 61, p. 185, ft. 132-138) - 8 Sept, Indian
fishing vessel Dairy Factory:
The Panel documented 10 Saudi-led - 22/23 Oct, - Information documented on social
Coalition air strikes on transportation Fishing market media by local journalists and
routes (both sea and air), four road - 30 March, IDP reported on by Human Rights Watch
supply routes and five storage facilities Camp HRW (2015). 31 civilian deaths and 4
for holding food aid (including two - 26 March, separate air strikes on the factory.
vehicles carrying aid and three Sa’dah (including
warehouses and facilities storing food), a warehouse Harad marketplace:
along with air strikes on an Oxfam supplying water - In its investigations in Djibouti, the
warehouse storing equipment for a equipment) Panel met with a young third country
water project funded by the European - 28 April, Sana’a national male/youth, who described
Union in Sa‘dah. The Panel also airport being hit twice during an air strike on
documented three coalition attacks on a Harad Market.
local food and agricultural production - Médecins Sans Frontières (“MSF”)
sites. (p. 47-48) Media Statement (dated 6 July 2015)
“Yemen: Hundreds Wounded in
Annex 47: Documented IHL violations Attacks on Markets and Residential

56

• Attacks on farms and agricultural
areas – 3 from the coalition
• Attacks on Humanitarian
organisations and national NGOs – 7
from the coalition; 2 from the
Houthi-Saleh forces
• Attacks on Dhows and Fishing
Vessels, including fishing market
villages – 5 from the coalition; 2 from
the Houthi-Saleh forces
• Attacks on Factories – 4 (including 1
food storage warehouse) from the
coalition
• Attacks on food distribution – 2 from
the coalition; 2 (cases of aid being
sold on the black market) from the
Houthi-Saleh forces
• Attacks on key road supply routes,
including sieges – 4 from the
coalition; 2 (multiple cases from
Aden and Tai’zz) from the Houthi-
Saleh forces
• Attacks on marketplaces – 10 from
the coalition
• Attacks on vehicles transporting aid
– 2 from the coalition
Areas”.
- On 6 July 2015, 23 civilians were also
injured as the result of an air strike
that took place in Alfayush market,
Lahij governorate.
Fishing vessels:
- Protection Vessels International (16
September 2015) Weekly Maritime &
Onshore Security Report 15 Sep 2015.
Fishing market:
- Reuters (24 October 2015) “Several
Yemeni fishermen killed in Saudi-led
strikes – witnesses”.
IDP Camp:
- Air strike attack on Al-Mazrak IDP
camp destroyed the food area and
clinic.
- OHCHR, “Yemen: The world must
be prepared for rapid collapse into
mass displacement crisis – UN
expert” (8 April 2015); IRIN (30 March
2015) “Yemen camp bombing – what
you need to know”.
Indiscriminate airstrikes Sa’dah:
- OHCHR Press Statement (21 July
2015); see also, OHCHR Press
Statement (31 March 2015).
- Interview with staff members of UN
agencies based in Yemen.
- Several humanitarian organisations
told the Panel how their offices and
warehouses had been either indirectly
impacted or directly struck during air
strikes, some of which appear to have
been linked to non-supply of GPS
coordinates to the Coalition or as
linked to air strikes on munitions sites
close to civilian areas in which such
organisations are based, including the
warehouse that was struck that stored
water equipment for an aid
organization project funded by the
EU.
57


Sana’a airport:
- The Guardian (28 April 2015) “Aid
flights to Yemen blocked after Saudi
Arabian jets bomb airport runway”.
- Sana’a airport airstrike coincided
with an attempt of the Iranian Red
Crescent Society to fly in a plane with
humanitarian cargo (food and
medicine). (Interview of the Panel
with the Iranian Red Crescent Society
in Tehran during September 2015.)
- Online social media commentary
related to the strike.
- Office For The Coordination Of
Humanitarian Affairs – Yemen,
Statement By The Humanitarian
Coordinator For Yemen, Johannes
Van Der Klaauw (Amman, 4 May
2015).
- RTT News (5 May 2015) “UN, Red
Cross Call For Access To Yemen's
Airports, Hit By Coalition Airstrikes”.

2018 UNSC Panel Report S/2018/68

Period 1 January 2017 – 31 December 2017

The Panel identified two cases where - 9 Aug 2016, - Video from New York Times article
Saudi Arabia’s Joint Incident Food factory in - Images obtained from individuals
Assessment Team found that the Saudi- Nahda District, working in the factory
led Coalition did not conduct strikes, but Sana’a
the Panel’s independent investigations
found clear evidence of air strikes. The
Panel thus concluded that the only entity
capable of carrying out these two attacks
was the Saudi-led Coalition. One of the
strikes targeted the Sana’a food factory.
(p. 47; Annex 60, p. 261; Appendix A to
A60, p. 262, ft. 3, 6)

Note: incident from 2017 UNSC Report,

included in 2018 UNSC Report to
include JIAT case studies.

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