Author: Itumo Goodness Sochima

Around the city of El Fasher, an earthen wall built by the Rapid Support Forces (RSF) had stood between civilians and survival. On one side lies food, water, and humanitarian supplies. On the other, civilians are trapped and starving, victims of what the United Nations describe as a catastrophic hunger crisis. 

When, after 18 months of siege, the RSF captured El Fasher, the atrocities only continued, with murder, rape and torture of civilians committed at a horrific scale. Yale researchers have revealed over 70 burial mounds in the land surrounding El Fasher. And while the RSF has now agreed to a humanitarian ceasefire, the SAF has refused to comply with the same if the RSF does not relinquish its hold on major cities. Many civilians have fled the city since the takeover, but over 100,000 people may still be trapped within its walls. 

While civilians’ immediate humanitarian needs must be addressed, it bears considering the challenges to accountability looking forward.

The Legality of Siege and the Prohibition on Starvation 

Siege starvation is not a novel concept in warfare. It means that a particular party to war encloses an area, reducing access to food, water, humanitarian aid, and medical supplies, thereby cutting off essential resources to the enclosed area. A siege can also manifest in destroying civilian structures that provide basic goods. The aim is to weaken the besieged party and pressure them to surrender. Siege starvation may also have other aims, such as to displace or kill a given population forcibly. When such tactics lead to mass hunger, one may label the situation ‘siege starvation.’ 

Under international law, one principle remains consistent: starvation must never be used as a weapon of war. This position of the law aims at preserving the principles of International Humanitarian Law (IHL), including proportionality, distinction, and precautions in attack, as provided for under Additional Protocol I in Article 52(2), Article 51(5)(b), and Article 57, respectively. 

The El Fasher Siege

International Humanitarian Law criminalizes what is happening in the enclosed El Fasher, Sudan. For more than 500 days, El Fasher has been under siege. This siege is a result of a war centered on a power tussle since April 2023 between the RSF and the Sudanese Armed Forces. The war has had catastrophic effects on civilian life, especially in El Fasher, Darfur’s capital, where water plants have been attacked, hospitals destroyed, and humanitarian access cut off. This left over 600,000 people, half of them children, in hunger. 

Starvation is prohibited under several international laws including: Customary International Humanitarian Law, Rule 53, Rule 55, Rule 56, Rule 129., as well as Rome Statute Article 8(2)(e)(xix), as amended in 2019. 

Legal Loopholes and Challenges to Accountability 

1.  The Challenge of Proving Intent 

The law illustrates that starvation should not be weaponized against civilians. However, where this occurs, it must be proved that the warring party intended to target civilians. This is the Mens rea for war crimes as provided in Article 8 (2) (b) (xxv) of Elements of Crimes. 

This position of the law creates a loophole for the RSF to claim that restrictions targeted enemy fighters, that infrastructure was a military objective, or that deprivation resulted from logistical collapse rather than deliberate policy. 

2.  Lack of Precedent

Even with the classification of starvation as a war crime in Non-International Armed Conflict, factors like lack of precedent still pose challenges as there has been no standalone trial for starvation as a war crime. The war crime of starvation has never been prosecuted in an international court on its own, only as part of around 20 other war crimes cases. In November, 2024 a warrant was issued for the arrest of Prime Minister Netanyahu and 3 others for war crimes in Palestine. However, this envisaged groundbreaking precedent was challenged by Israel’s lack of acceptance of ICC’s jurisdiction. This challenges the international community in terms of accountability, especially in cities like El Fasher, which is currently under siege. 

3.  Non-Ratification and Enforcement Gaps 

The Rome Statute of the ICC is built in a way that the first signatories are not bound to further amendments, such as Article 8 of the Statute. The amendment of the Article is only applicable to the states that have ratified and accepted the amendments made. 

Sudan has not ratified the Rome Statute, or its amendments. This poses no challenge for North Darfur. Because of the United Nations Security Council Referral in 2005 under Article 13 of the Rome Statute, the International Criminal Court has jurisdiction over the situation in Darfur. 

Another issue is the lack of enforcement bodies. For example, UNSC Resolution 2417 (2018) is a resolution that condemns starvation as a weapon of war. Although binding on member states, it lacks enforcement agencies, especially when it comes to non-state armed groups, in this case the RSF.

4. Challenge in Individual Responsibility

The Rome Statute concentrates on individual perpetrators of war crimes. It is difficult to identify the chain of command in a non-state armed group like RSF. Especially, because even though the leader is identifiable as Mohamed Hamdan Dagalo, there is a lack of transparency in the actual chain of command on the battlefield, as the RSF is only loosely organized.

If this gap in accountability remains, cities like El Fasher and other warring parties will continue to face war crimes like siege starvation, as lack of redress or accountability encourages the contravention of these laws. Structuring the international community accountability framework to address this war crime, would not only serve justice to over 250,000 people who endured the unimaginable but would also prevent future derogation as well as reaffirm the world’s commitment to restoring humanity.