Protection of Right to Food and Environment in Times of Armed Conflict
by Hilal Elver*
The following is the keynote address given by Hilal Elver to the Geneva Academy on June 8, 2022. Footnotes at end of article.
Internal and international armed conflicts are one of the major reasons for increased food insecurity and malnutrition. Despite well-established norms of international human rights law and international humanitarian law protecting the right to food, hunger and malnutrition, as well as famine has skyrocketed in last few years. There is a shocking failure in addressing criminal acts of deliberate starvation and other severe violations of a fundamental human right: the “right to food.” This non-compliance by States and other political actors as well as the reluctance to implement existing international norms to protect human rights and the environment in times of war is a critical failure of international community.
Most recently, the war in Ukraine has elevated catastrophic hunger and malnutrition levels to the top of the global agenda. The war has raised awareness of ongoing widespread hunger and malnutrition even beyond Ukraine, as the parties to the conflict are the major players of global agricultural trade.
Article 11 of the International Covenant on Economic Social and Cultural Rights specifically recognizes “the fundamental right of everyone to be from hunger,” which further imposes an obligation on States to ensure “the satisfaction of, at the very least, the minimum essential level” of this right under all circumstances, including the times of war. Freedom from hunger is accepted as part of customary international law, rendering it binding for all states regardless of whether they are party to the Covenant. States cannot put aside or postpone the realization of this core component of the body of economic and social rights. According to their international legal obligations, States must continue to take deliberate and targeted steps using all appropriate means to fulfill these rights, even in times of conflict. Yet, 60% of the people suffering from hunger and malnutrition globally live in conflict-ridden places, mostly in the Middle East and Africa.
HOW DO ARMED CONFLICTS AFFECT THE RIGHT TO FOOD?
Conflict can trigger food insecurity in a myriad of ways, including through the loss of assets, the erosion of communities’ coping capacities, and the breakdown of social support systems. It often reinforces existing social inequalities and intensifies the human rights violations experienced by disadvantageous populations.
The right to adequate food may also be endangered in times of conflict through the disruption of agricultural activity, the deterioration of food-related economies, and the deliberate undermining of access to food and humanitarian assistance by parties to the conflict. Contrary to popular belief, casualties resulting direct from combat usually make up only a small proportion of deaths in conflict zones; in fact, most individuals perish from hunger and diseases. Joint, coordinated actions and policy responses are needed to address the current challenges for the people most in need and to mitigate the impact on food insecurity at global level.
Even though war in Ukraine has brought attention to the issue of world hunger, prior to the conflict global levels of hunger and malnutrition were alarmingly high. The impact of weather-related disasters on acute food insecurity in the form of drought, rainfall deficit, flooding, and cyclones has intensified since 2020. Moreover, economic shocks were the main drivers of uneven economic recovery from the COVID-19 pandemic and widespread supply chain disruptions shocks continue to rise.
About 811 million people go to bed hungry each night. The Integrated Food Security Phase Classification is a standardized tool that classifies the magnitude of food insecurity. Categories three, four, and five, (crisis, emergency, and famine, respectively) require urgent action. According to the findings of the 2022 Global Report on Food Crises (GRFC), 193 million people across 53 countries were acutely food insecure and in need of urgent assistance, more than doubled from 135 million to 276 million since 2019. surpassing all previous records. The number of people in crises or worse has almost doubled between 2016 and 2021. A total of 48.9 million people are currently facing emergency levels of hunger. The number of people on the brink of starvation across Africa’s Sahel region, for example, is at least 10 times higher than in pre-COVID 2019.
Malnutrition remains at critical levels in countries affected by food crises. Almost 26 million children under 5 years old are currently suffering from malnutrition.
In 2021, there were 51 million internally displaced peoples (IDP), 21 million refugees, and 4 million asylum seekers due to a mix of conflict, COVID-19, poverty, food insecurity, and weather extremes.
Today, the world stands on the brink of an unprecedented level of famines since WWII. About 30 million people are experiencing severe hunger and malnutrition in Northeastern Nigeria, South Sudan, Somalia, and Yemen. 10 million of them are facing emergency and famine conditions. These are just four of the many countries that are facing high levels of food insecurity this year. In Malawi, Sudan, Afghanistan, DRC, and Syria, millions of people do not have enough food to feed their families. The situation in some of these countries could worsen if the international community does not address their populations’ urgent needs and resolve the root causes of food insecurity.
These figures are expected to go up in 2022 as the war in Ukraine further unfolds. The war will continue to have a detrimental impact on global food, energy, and fertilizer prices as well as the already-broken supply chain in Black Sea region (the largest wheat trade in the world). Countries that are already food insecure and dependent on imports of food, fuel, and agricultural inputs will suffer further from the price increases that result from war-related blockages, export restrictions, and economic sanctions.
Even prior to the war in Ukraine, international food prices had reached an all-time high. This was mostly due to market conditions, but also because of high prices of energy, fertilizers, and other agricultural services. In February 2022, the FAO Food Price Index reached a new historical record: 21 percent above its level a year earlier, and 2.2 percent higher than its previous peak in February 2011.
The cost of reaching people in need is rising: the World Food Program (WFP) is paying for food is up 30 percent for food compared to 2019, an additional US$42 million a month.
As indicated earlier, the Russian Federation and Ukraine are prominent players in global trade of food and agricultural products. In 2021, wheat exports by the Russian Federation and Ukraine accounted for about 30 percent of the global market. Ukraine is the world’s 4th largest maize exporter. Combined, sunflower oil exports from both countries represented 55 percent of the global supply.
The Russian Federation is also a key exporter of fertilizers. In 2020, it ranked as the top exporter of nitrogen fertilizers, the second leading supplier of potassium, and the third largest exporter of phosphorous fertilizer.
The Ukraine crisis has revealed that just a handful of countries export the vast majority of the world’s staple grain trade and a small number of firms control most of that trade. Concentration at such levels typically indicates extreme differentials in power within food systems and highlights the way in which people in import-dependent, low-income countries are barred from engaging with food systems on their own terms.
Nearly 50 countries depend on the Russian Federation and Ukraine for at least 30 percent of their wheat import needs. Of these, 26 countries source over 50 percent of their wheat imports from these two countries. In that context, this war will have multiple implications for global food markets, representing a challenge for food security in many countries, especially low-income, food import dependent countries with vulnerable population groups.
Sounding the alarm, UN secretary general António Guterres said Ukraine-related shortages could “tip tens of millions of people over the edge into food insecurity.” The result could be “malnutrition, mass hunger and famine that could last for years” – and increase the chances of a global recession. The World Bank announced an additional $12 bn. in funding to mitigate the war’s devastating effects as well as additional fears of inflation and worldwide recession.
While the international community hast stepped up to calls for urgent famine mitigation action, global humanitarian and development funding for food crises is failing to match growing needs. The urgency will likely continue to grow in the coming months – perhaps even years – due to the direct and indirect effects of the current war.
CAN THE INTERNATIONAL LEGAL ORDER PROTECT PEOPLES’ RIGHT TO FOOD DURING ARMED CONFLICT?
Beyond international human rights principles, the international legal system addresses the right to food during the armed conflict through the specific legal framework of International Humanitarian law (IHL). IHL protects civilian livelihoods and their access to food. While IHL does not specifically mention the right to food, many of its provisions are intended to ensure that people cannot be denied access to food during armed conflict. The four Geneva Conventions of 1949 and two Additional Protocols of 1977 set out IHL’s major rules, which include prohibiting: (1) starvation of civilians as a method of warfare; (2) forced displacement; and (3) denial or blocks to humanitarian assistance.
It is now widely accepted by the international community that intentionally caused famine and forced starvation are forbidden under international criminal law. Famine becomes a crime if there is sufficient evidence of an intentional or reckless effort to block certain groups from accessing food under conditions of conflict or hardship. While it is theoretically possible to bring those responsible for starving a population to death during an armed conflict to justice, there is insufficient political will to do so in the current international climate.
States and international judicial institutions have not adequately interpreted and implemented international law principles to hold perpetrators of the right to food accountable. In other words, there are insufficient international legal implications for deliberately causing famine or severe environmental damage in times of armed conflict.
“Hunger, famine and malnutrition are always the result of political failures. As with any military invasion, all countries must work in solidarity to address the urgent nutritional needs of all vulnerable people, especially refugees, older persons, people with disabilities, and children. Food should never be weaponized and no country in the world should be driven into famine and desperation.”
HOW DOES CONFLICT IMPACT ENVIRONMENTAL DESTRUCTION?
While much of this discussion has focused on the human costs of conflict, it is also worth exploring what options exist for pursuing accountability for the severe environmental impacts of the war. Conflicts often have profound ecological impacts. Wars destroy habitats, kill wildlife, spread pollution and completely remake ecosystems, resulting in consequences that ripple forward for decades.
The Ukraine war is wreaking environmental havoc on the top of its human tragedies. At the UN Environmental Assembly meeting in Nairobi in March, 108 NGOs highlighted the serious risks that the Russian Federation’s invasion poses to the ecosystem and expressed concerns over shelling and releasing nuclear and toxic waste into the environment.
The Russian Federation’s attacks on military structures, urban areas, and energy infrastructures potentially have international environmental implications as they have resulted in widespread pollution of the air, water, and land. Ukraine has many chemical plants and storage facilities, some of which have been already hit.
According to a study in 2009, more than 80% of the world’s major armed conflicts between 1950 and 2000 took place in biodiversity hot spots. There has been very little large-scale research on the ecological impact of warfare, but one 2018 study found that armed conflict correlated with the decline of wildlife populations across protected areas of Africa. Wildlife populations tended to be stable in peacetime and decline during war, with more frequent the conflicts leading to steeper the declines. 
The Black Sea area (Black Sea Biosphere Reserve) is a haven for the migratory birds. The reserve is also home to many endangered species, such as the Sandy Blind Mole-Rat, the Bottlenose Dolphin, rare flowers, and dozens of species of fish. Oleksandr Karsnolutskyi, deputy minister of environment, has noted that “[t]here is no information [yet] on environmental losses.” Ukraine is also home to vibrant wetlands, forests, and a large swath of virgin steppe.
Armed forces often exploit “lootable resources” such as oil and timber. Recently, the Russian Federation’s armed forces have destroyed wheat-filled warehouses in Ukraine, or steal and sold internationally.
In some cases, deliberate environmental destruction is an explicit military tactic. During the Vietnam War, the US military sprayed Agent Orange to destroy the forest’s flora and uncover the Vietnamese forces. During the first Gulf War, Saddam Hussein’s army destroyed Kuwait’s oil resources as a combat tactic, eventually leading to the release of massive amounts of air pollution into the atmosphere.
In other cases, environmental destruction might not be deliberate, but armed forces still hugely damage the environment. For example, armies dig trenches, tanks flatten vegetation, bombs scar landscapes, and explosives ignite fires. Weapons release toxic gases and particulates into the air and leak heavy metals into the soil and water.
The environmental scars of war can be long-lasting. The effects of the devastating forest destruction during WWII can still be seen in France today. Soil in former war zones remain contaminated by heavy metals for a very long time.
There is also a fear of nuclear devastation. Ukraine has 15 nuclear reactors at four power plants. This could lead to the large-scale radioactive contamination of vast areas beyond Ukraine’s borders. Damage to the nuclear waste site could also produce significant contamination. In the Chernobyl Exclusion Zone, Russian military activity may have already released particles harmful to the local flora.
Wars often cause economic and food insecurity, driving vulnerable local communities to rely more on natural resources and wild game to survive. Large wild animals also often leave their environment during the war.Some armed forces depend on wild animals to feed their troops or harvest valuable animal parts, like elephant tusks and rhinoceros horns, to finance their activities.
This increased demand for wildlife is often accompanied by a weakening of environmental protections or enforcement.During Angola’s civil war in 1975 and Mozambique’s civil war between 1977-1992, the population of large mammals declined by more than 90%.
War also has opportunity costs as funds and priorities shift from conservation to human survival. There is an urgent need to prioritize conservation immediately after a conflict, as environments can be at-risk as nations seek to rebuild infrastructure and economies.
WHAT ARE THE LEGAL OBLIGATIONS TO PROTECT ENVIRONMENT DURING THE WAR TIME?
Unfortunately, States are reluctant to strengthen laws that protect the environment from war. Since 2013, the International Law Commission (ILC) has been working on a set of draft principles in relation to the protection of the environment during armed conflicts. It has identified 28 draft principles thus far and is set to conclude in Fall 2022. However, many of the principles will face serious opposition from States.
Overall, a number of influential states are rejecting binding obligations to protect the environment. For instance, Canada called for all proposed principles that would protect the environment during occupation to be deleted. Russia did not submit any comments during this round but stated earlier that environmental protection has a lower priority that civilian protection, and that the current legal framework is adequate.
The Ukraine war also increased discussions around genocide and ecocide, or criminal responsibility for severe human rights violation and environmental damage. The use of ecocide terminology reflects both the scale of the perceived risk and Ukraine’s particular legal context as the one of a small number of states that have criminalized ‘ecocide’ through domestic legislation. Article 441 of the Ukraine Criminal Code defines ecocide as “mass destruction of flora and fauna, poisoning of air or water resources, and also and other actions that may cause and environmental disaster.”
Outside the domestic context, the possibilities for pursuing international criminal accountability for environmental crimes are somewhat limited. In theory, the International Criminal Court (ICC) could choose to investigate eco-centric war crimes under Article 8 (b) (iv) of the Rome Statute. The Court has jurisdiction over the crime of “intentionally launching an attack in the knowledge that such attack will cause …widespread, long term and severe damage to the natural environment.” However, to prove this crime, there needs to be demonstrated evidence of damage to the natural environment that is clearly excessive in relation to the concrete and direct “overall military advantage” anticipated. These conditions substantially reduce the applicability of this crime in practice. In fact, such crimes are impossible to prosecute.
In conclusion, Intentional environmental damage for military purposes or unintentional widespread, long-term, and severe damage to the environment should similarly be considered as a crime against nature and perpetrators should be held accountable. Human rights and environmental rights cannot be separated from one another or be undermined, both in times of war and in times of peace.
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* Hilal Elver is a Global Distinguished Fellow at the Resnick Center for Food Law and Policy. She is the former UN Special Rapporteur on Right to Food (2014-2020), and currently a member of the High Level Panel of Experts (HLPE) of the World Committee of Food Security (CFS).
You can find her website here.