Critical Analysis of Cases Involving Allegations of Deliberate Starvation at The ICTY

Zhejiang Gongshang University
Undergraduate Dissertation
Title: A critical analysis of cases involving allegations

of enforced or deliberate starvation at the
International Criminal Tribunal for the former
Yugoslavia
School: School of Law
Major: International Law
Class：15 Q
Student No.：1509510111
Student Name: Nazly Ahmed Amir Hafez Sadik
Supervisor: Suzannah Linton
i
July 2019
DECLARATION
To the best of my knowledge and belief this dissertation contains

no material previously published by any other person except
where due acknowledgment has been made.
This dissertation contains no material, which has been accepted

for the award of any other degree or diploma in any university.
Signature:
Date:
ii
前南斯拉夫国际刑事涉及指控强迫或蓄意导致饥饿的法庭
案件的批判性分析
摘要：本文确定并分析前南斯拉夫国际刑庭关于强迫或蓄意饿死的一些案例。
本文撰写的动机来源于也门当前存在的饥荒悲剧以及强调对国际刑法作为法律
工具解决此类危机的迫切需求。在判例上，前南斯拉夫法庭所起到的作用十分
显著，本文的作者认为前南斯拉夫法庭的判例可以被利用并创作出一种新的集
体诉讼浪潮，以此来解决未来将会发生的强迫或蓄意饿死案件。
本文研究的目的是研究前南斯拉夫国际刑庭关于强迫或蓄意饿死的一些案例。
在这些需要分析内容中，研究的总体目的是首先审查前南问题国际法庭是否有
效地起诉强迫或蓄意的饥饿，其次，不论是否借鉴了前南斯拉夫法庭的判例，
仍旧有足够的理由去期望将来可以起诉关于强迫或蓄意饿死的案件。因此，本
论文的学术目的是利用前南斯拉夫法庭的实证研究结果。在寻求如何回应前南
斯拉夫法庭如何为起诉饥饿做出贡献时，论文分析了饥荒案件发挥作用，案件
如何起诉，需要什么证据，饥饿是否是蓄意的以及起诉所将面临的挑战。本文
利用前南斯拉夫法庭的经验教训，试图改变对未来起诉饥荒可能性的期望。
作者的最终目标是表达饥荒是如此的恶毒，甚至是无法想象的。虽然最终的目
标是将强制或蓄意的饥饿打上烙印，但这不是上帝的行为，而是一种大规模屠
杀行为，并以非法的方式概念化。
关键词：前南斯拉夫国际刑庭，强迫或蓄意饿死，起诉，不断袭击，人道主义
封锁，拘留
iii
ABSTRACT
This thesis identifies and analyse the ICTY cases that deal with enforced or deliberate
starvation. The thesis has been motivated by the current starvation tragedy of Yemen,
and the need for clarity about the legal tools that exist within ICL. The ICTY’s
jurisprudential legacy has generally been remarkable, and the present author believes
that ICTY jurisprudence can be used to create a culture of focused prosecutions for
enforced or deliberate starvation for the future.
The aim of this study is to identify the ICTY’s enforced or deliberate starvation
jurisprudence. Within these parameters, the overall purpose of the study is to examine,
firstly, whether the ICTY has contributed effectively in prosecuting enforced or
deliberate starvation, and secondly, whether using the experience of the ICTY, it is
reasonable to expect that prosecuting enforced or deliberate starvation could be possible
and credible in the future. Therefore, the academic aim of the thesis is to use the results
of the empirical research on the ICTY. In seeking to answer how the ICTY has
contributed in prosecuting starvation, the thesis analyses the case starvation played a
role in, how was it charged, what evidence was required, whether the starvation was
deliberate and what challenges the prosecution faced. Using the lessons of the ICTY,
the thesis seeks to modify expectations about the potential of prosecuting starvation in
the future.
The ultimate objective of the author is making the infliction of starvation so morally
toxic that it is unthinkable. While the end goal is branding that enforced or deliberate
starvation is not an act of God, but an act of mass murder and conceptualized in terms
of something that is unlawful.
Key Words ： ICTY, enforced or deliberate starvation, prosecution, siege,

humanitarian blockade, detention
iv
ACKNOWLEDGMENT
I would like to acknowledge my indebtedness and render my warmest thanks to my
supervisor, Professor Suzannah Linton, who made this work possible. Her friendly
guidance and expert advice have been invaluable throughout all stages of the work. I
would also wish to express my gratitude for her extended discussions and valuable
suggestions, which have contributed greatly to the improvement of the thesis.
A special thanks is due to my father Ahmed Amir, for his continuous support and
understanding. The person with the greatest indirect contribution to this work is my
mother Hanan Zhagloul, who has taught me love of equality, fairness and justice. I
want to thank her, my father, as well as my brother Dr. Abdelrahman, for their
constant encouragement. This thesis has been written during my stay at the law
Department of Zhejiang Gongshang University. I take this opportunity to thank all my
professors that have taught me in this program.
v
Table of Contents
DECLARATION ............................................................................................................................... ii
ABSTRACT ....................................................................................................................................... iv
ACKNOWLEDGMENT ................................................................................................................. v
1. Introduction..................................................................................................................................... 1
1.2 Objectives of research .......................................................................................................................... 2
1.3 Methodology............................................................................................................................................ 4
CHAPTER 2: THE IDENTIFICATION OF ICTY CASES INVOLVING

ENFORCED OR DELIBERATE STARVATION .................................................................. 5
2.1 Siege or humanitarian blockade ........................................................................................................ 6
2.2 Detention camps .................................................................................................................................. 11
2.2.1 Foča Kazneno-Popravni Dom (KP-Dom) ............................................................................... 12
2.2.2 Manjača camp .................................................................................................................................. 13
2.2.3 Omarska camp .................................................................................................................................. 14
2.2.4 Keraterm camp ................................................................................................................................. 15
2.2.5 Trnopolje camp ................................................................................................................................ 16
2.2.6 Čelebići camp ................................................................................................................................... 17
CHAPTER 3: EXAMINATION OF THE CASES ON THE BASIS OF THE

RESEARCH QUESTIONS ......................................................................................................... 18
3.1 Research question 1: How was the enforced or deliberate starvation charged?.............. 18
3.1.1. Crimes against Humanity ................................................................................................... 19
3.1.2 Genocide .................................................................................................................................. 21
3.1.3 War Crimes ............................................................................................................................. 22
3.2 Research question 2: What evidence was considered and what was the standard of
evaluation?.................................................................................................................................................... 24
3.3 Research question 3: What was the line dividing starvation, and enforced or deliberate
starvation?..................................................................................................................................................... 28
3.4 Research question 4: What were the challenges faced by Prosecution in these cases? 30
CHAPTER 4: ANALYSIS OF THE FINDINGS ................................................................. 31

4.1 Analysis of the findings from research question one: How was the enforced or
deliberate starvation charged? ................................................................................................................ 32
4.1.1 Crimes against Humanity ........................................................................................................ 32
vi
4.1.2 Genocide ....................................................................................................................................... 34
4.1.3 War Crimes .................................................................................................................................. 35
4.2 Analysis of the findings from research question two: What evidence was considered
and what was the standard of evaluation? .......................................................................................... 36
4.3 Analysis of the findings from research question three: What was the line dividing
starvation, and enforced or deliberate starvation?............................................................................ 37
4.4 Analysis of the findings from research question four: What were the challenges faced
by Prosecution in these cases? ............................................................................................................... 39
CHAPTER 5: CONCLUSION ................................................................................................... 42

Bibliography..................................................................................................................................... 44
vii
CHAPTER 1. INTRODUCTION
History provides plentiful examples of large numbers of humans dying from

lack of food and water. Obviously, this can take place through the forces of nature, and
without any human fault. However, there are countless examples of where starvation
has been used in a deliberate and inhumane way. Examples include restricting food and
water supplies in war situations to force surrender and intentionally starving people to
death. The situations in Yemen, and Syria are particularly stark reminders that this is
not a barbarism of the past.
Although the deliberate starvation of an enemy population is as old as war itself,

the crime has been under-recognized in international law. Too often, instances of
starvation are dismissed as the products of mistakes or unfavorable weather, rather than
criminal acts.
According to the World Food Programme, ten of the 13 largest food crises in
the world – including those in Afghanistan, Democratic Republic of Congo, Syria, and
Yemen – are not only driven by conflicts, but are the product of deliberate war tactics
that include crippling economies and starving populations. 1
A close look at the ICTY cases shows that food scarcity in that armed conflict
was not a product of coincidence. Instead it was a result of a strategy deliberately
engineered to achieve political aims. During the Yugoslav wars, enforced or deliberate
starvation was most commonly deployed through two ways: siege or humanitarian
blockade, and in detention camps.
Already In 1993, Theodor Meron, who later became the president of the ICTY, called
for legal and political response to both rape and starvation. However, the crime of
starvation had another fate than rape.2
1
Alex de Waal, ‘Mass starvation: tackling the political causes of famine’ 6 December 2018.
1
In some of the ICTY’s camp cases, prisoners were nearly starved to death and,
at best, were given one meal a day consisting of meager portions of thin soup and bread.
In instances where the International Committee of the Red Cross delivers food to a
camp, the food was not distributed to prisoners as intended but is retained for the
Bosnian-Serb fighting forces or the camp guards.3
The ICTY’s statutory framework does not contain any mention of starvation,
but enforced or deliberate starvation can fit under categories of unlawful conduct such
as a war crime, an act of extermination comprising a crime against humanity and or
potentially as an act of genocide by ‘deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part.
ICTY have developed a significant body of legal precedent with respect to enforced
or deliberate starvation that is now available to future.
1.2 Objectives of research
This dissertation has been motivated by the tragedy of Yemen, and the need
for clarity about the legal tools that exist within ICL.
The objective of this study is to identify and scrutinize the ICTY’s enforced or
deliberate starvation jurisprudence. Within these parameters, the overall purpose of
the study has been to examine, firstly, whether the ICTY has contributed effectively
in prosecuting enforced or deliberate starvation, and secondly, whether using the
experience of the ICTY, it is reasonable to expect that prosecuting enforced or
deliberate starvation could be possible and credible in the future. Therefore, the
academic aim of the thesis is to use the results of the empirical research on the ICTY.
In seeking to answer how the ICTY has contributed in prosecuting starvation, the
2
Dr. Jill EB Coster van Voorhout, ‘ Starvation as a Weapon of War in Syria – Prosecution and an R2P
Intervention’ (the Hague Institute for global justice 22 August 2014)
3
Randle C DeFalco, ‘Conceptualizing Famine as a Subject of International Criminal Justice: Towards
a Modality-Based Approach’ (2017) 38 U Pa J Int’l L 1113, 1148.
2
thesis analyses the case starvation played a role in, how was it charged, what evidence
was required, whether the starvation was deliberate and what challenges the
prosecution faced. Using the lessons of the ICTY, the thesis seeks to modify
expectations about the potential of prosecuting starvation in the future.
The dissertation will identify and analyze the ICTY cases that deal with
enforced or deliberate starvation. The concept, objectives and methodology are
introduced in Chapter one. Chapter two identifies the ICTY cases where enforced or
deliberate starvation played a role. Chapter three seeks to find answers for the four
research questions developed. Chapter four provides analysis on the finding of the
four research questions. Finally, chapter five provides concluding remarks and
reflections on the dissertation.
In order to test the central argument and to guide the research, the following research
questions in chapter 3 have been developed:
1. How was the enforced or deliberate starvation charged?
2. What evidence was considered and what was the standard of evaluation?
3. What was the line dividing starvation, and enforced or deliberate starvation?
4. What were the challenges faced by Prosecution and Defense in these cases?
These research questions will allow for greater understanding of the mass of
cases where enforced or deliberate starvation has been charged or played a major
evidentiary role. They will also draw out particularly important jurisprudence, and
also facilitate identification of consistency and inconsistency, as well as gaps or
problem areas.
The richness of the ICTY case-law is the reason why the present dissertation
focuses on this institution’s cases. They form a foundation for a rigorous study of the
handling of deliberate or intentional starvation in ICL. The analysis of the ICTY cases
allows, in the conclusion, for a reflection on the way that the reported enforced or
deliberate starvation in Yemen may be judicially addressed.
3
1.3 Methodology
The primary research activity for this dissertation is the identification and
analytical review of cases at the ICTY. These cases will be identified using three
search engines. The first is the best, that of the Legal Tools project
(https://www.legal-tools.org/), and the second is the ICTY’s own website’s search
engine at (http://www.icty.org/en/content/ictricty-case-law-database) and the third is
and RefWorld (https://www.refworld.org/), which may not be as reliable as the first
two. High quality academic literature will also be canvassed for the leading ICTY
cases and this will be cross-referred against the cases identified by the search engines.
This three-step process ensures that the search for cases will be reliable.
The cases, which are all found online at the ICTY’s website and that of the
Legal Tools project, will be ‘mined’ by way of the identified research questions. The
author’s ability to read and analyze the cases will be very much enriched by her study
of background literature. Not all of the materials that will be consulted and relied on
are from the legal discipline; this will be an enriching feature. Even so, the research
questions are primarily legal, and the skills needed to obtain the answers from
judgements are of course legal skills.
All the materials studied will be in the English language.
4
CHAPTER 2: THE IDENTIFICATION OF ICTY CASES INVOLVING
ENFORCED OR DELIBERATE STARVATION
In this chapter the author has brought forth seventeen cases that relate directly
to enforced or deliberate starvation. The full list of cases identified is provided as
Annex I. Cross-checking against the International Court of Justice’s Judgement in the
Bosnia v Serbia genocide case,4 and leading works on international criminal law such
as Alex de Waal’s many publications on this topic5 and David Marcus’ 2017 article in
the American Journal of International Law,6 has confirmed that the author can be
confident that the cases identified are indeed reliable.
The ‘mining’ of the cases by way of the identified research questions will be
conducted in Chapter 3. Here in this chapter, the author will present some of the
research findings, laying out the essentials of the cases in order to provide the context
for the analysis in Chapter 3. Given that we have, in these cases, findings of fact from
the ICTY’s Trial Chambers based on a rigorous evidentiary test of ‘beyond reasonable
doubt’, the author’s overview of the facts is exclusively based on these judgements.
A few words on methodology are necessary here. In seeking to answer the

research questions in Chapter 3, the author has identified and analyzed the cases where
enforced or deliberate starvation played a role related to the charges, and did not just
provide background context. As explained in the Introduction, the ICTY’s statutory
framework does not contain any mention of starvation, but enforced or deliberate
starvation can fit under categories of unlawful conduct such as ‘inhumane acts’. This
is what the author has sought to identify. For example, searching the databases using
the keywords of ‘starvation’, ‘food’ and ‘conditions’ brought up several cases including
Prosecutor v Milorad Krnojelac. Closer analysis of this case revealed that the accused
4
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) Judgement 26 February 2007 [2007] ICJ Reports 43.
5
Alex de Waal, (n 1).
6
David Marcus, ‘Famine Crimes in International Law’, The American Journal of International Law,
Vol. 97, No. 2, April 2003.
5
was charged with having committed inhumane acts as a crime against humanity,
pursuant to Article 5(i) of the Statute, and with cruel treatment as a violation of the laws
or customs of war, pursuant to Article 3 of the Statute and recognised by Article 3(1)
(a) of the Geneva Conventions. This charge was based on the Prosecution’s allegation
that, while Krnojelac was warden of the KP Dom camp, living conditions in the camp
were characterised by inhumane treatment, overcrowding, starvation, forced labour and
constant physical and psychological assault. Krnojelac was convicted under the
doctrine of superior responsibility of the war crime of cruel treatment as a breach of
Common Article 3 of the Geneva Conventions for the living conditions enforced on
non-Serb detainees.7 In this case, evidence of the physical and psychological suffering
of more than twenty victims of enforced or deliberate starvation was considered.
Krnojelac is therefore a relevant case for the present research. By contrast, cases such
as Prosecutor v. Stanislav Galić were excluded because enforced or deliberate
starvation was not involved in the charges. For example in Galić, although the case
related to the siege of Sarajevo where enforced or deliberate starvation occurred, the
prosecutors did not press starvation-related charges against the accused. It is therefore
not a case that is relevant to the present study.
During the Yugoslav wars, enforced or deliberate starvation was most

commonly deployed through two ways: siege or humanitarian blockade, and in
detention camps. The enforced or deliberate starvation was charged by prosecutors as
genocide, war crimes and/or crimes against humanity depending on the circumstances,
and under categories such as ‘persecution’ as a crime against humanity. It is these
particular cases that are crucial for the present research.
2.1 Siege or humanitarian blockade
Siege or humanitarian blockade was employed across Bosnia and Herzegovina.

However, combat-related litigation on enforced or deliberate starvation emerged in
only 4 cases, and they came from the siege or humanitarian blockades of Sarajevo and
Srebrenica.
7
DeFalco (n 3).
6
World Map, Political Map of Bosnia and Herzegovina
[https://www.mapsofworld.com/bosnia/bosnia-political-map.html]
2.1.1 The siege of Sarajevo
From among the cases on this situation, the author has identified the following
cases as involving enforced or deliberate starvation:
Prosecutor v Ratko Mladić (Trial and Appeal Judgements)
Prosecutor v Momcilo Krajišnik (Trial and Appeal Judgements)
Prosecutor v. Dragomir Milošević (Trial and Appeal Judgements)
Prosecutor v Radovan Karadžić (Trial and Appeal Judgements)
These cases span from political leaders (eg. Krajišnik and Karadžić) to military leaders
(eg. Mladić and Milošević). Four convictions were entered in relation to the matter of
enforced or deliberate starvation.
7
Sarajevo, the capital of ethnically mixed Bosnia, was the site of the most
prominent siege of the Balkan wars that followed Yugoslavia’s disintegration in the
early 1990s. On 6th April 1992, Serb forces began shelling the city from hillside
positions and occupied several neighborhoods. This lasted from 1992–95 and was the
longest siege in modern history.8 In the evaluation of the Trial Chamber in Prosecutor
v Dragomir Milošević, Sarajevo was not a classical siege:
This was not a siege in the classical sense of a city being surrounded,
it was certainly a siege in the sense that it was a military operation,
characterized by a persistent attack or campaign over a period of
fourteen months, during which the civilian population was denied
regular access to food, water, medicine and other essential supplies,
and deprived of its right to leave the city freely at its own will and
pace. The purpose of the siege of Sarajevo was to compel the BiH
Government to capitulate.9
In this situation, starvation was not a natural by-product of the fighting.

Evidence submitted in the course of ICTY proceedings shows it was deliberate and
enforced. For example, on 5th May 1992, Momčilo Mandić, then Minister of Justice of
the Bosnian-Serb Republic, was recorded to have had a telephone conversation with an
associate boasting that ‘we are holding Turks under siege [in Sarajevo]. We’ll starve
them a bit’. 10 Further, he boasted that ‘we want to build a new and nice Sarajevo ... we
don’t like this, old synagogues and mosques, we have to change architecture and
everything.’11
The Prosecution in Prosecutor v. Dragomir Milošević successfully argued that
the Sarajevo Romanija Corps intended to terrorize the civilians of Sarajevo with its
campaign, ‘and they did so’.12 United Nations employee David Harland testified in
several cases that the campaign was part of a strategy to force the Bosnian Muslims,
through the application of ‘pressure’, to capitulate on terms favorable to the Bosnian
8
Peter Andreas, ‘What We Learned: from the Siege of Sarajevo’ (Military History Magazine, 2
September 2018) < https://www.historynet.com/learned-siege-sarajevo.htm> accessed 26 March 2019
9
Prosecutor v. Dragomir Milošević (Trial Judgement), IT-98-29/1-T (12 December 2007), para 751.
10
Prosecutor v. Momčilo Krajišnik (Trial Judgement), IT-00-39-T (27 September 2006), para 953.
11
ibid para 953.
12
n (9) para 752.
8
Serbs. The deprivation of the civilian population in Sarajevo of food, water and power
was also ‘a common theme’ of the Bosnian Serb strategy to force the Bosnian Muslim
Government to accept a peace agreement.13
2.1.2 The ‘Safe Area’ of Srebrenica
The author has identified the following cases from this situation as involving charges
of enforced or deliberate starvation:
Prosecutor v Radovan Karadžić (Trial and Appeal Judgements)

Prosecutor v Ratko Mladić (Trial and Appeal Judgements)
Prosecutor v. Radislav Krstić (Trial and Appeal Judgements)
Prosecutor v. Naser Orić (Trial and Appeal Judgements)
Prosecutor v. Momir Nikolić (Trial Judgement and Sentencing Judgement)
These cases span from political leaders (eg. Karadžić) to military leaders (eg.
Mladić, and Krstić) to soldiers (Nikolić). Four convictions were entered in relation to
this matter of enforced or deliberate starvation.
The atrocities committed in and around Srebrenica are nowhere better summarized than
in the first paragraph of the Judgement of the Trial Chamber in the Krstić case:
The events surrounding the Bosnian Serb take-over of the United Nations
(‘UN’) ‘safe area’ of Srebrenica in Bosnia and Herzegovina, in July 1995,
have become well known to the world. Despite a UN Security Council
resolution declaring that the enclave was to be ‘free from armed attack or
any other hostile act’, units of the Bosnian Serb Army (‘VRS’) launched an
attack and captured the town. Within a few days, approximately 25,000
Bosnian Muslims, most of them women, children and elderly people who
were living in the area, were uprooted and, in an atmosphere of terror,
loaded onto overcrowded buses by the Bosnian Serb forces and transported
across the confrontation lines into Bosnian Muslim-held territory. The
military-aged Bosnian Muslim men of Srebrenica, however, were
consigned to a separate fate. As thousands of them attempted to flee the
area, they were taken prisoner, detained in brutal conditions and then
executed. More than 7,000 people were never seen again.14
13
ibid 753.
14
n (4) 116. para 278.
9
On 16th April 1993, the UN Security Council passed a Chapter VII resolution,
declaring that ‘all parties and others treat Srebrenica and its surroundings as a “safe
area” that should be free from armed attack or any other hostile act.’15 From the outset,
both the Bosnian Serbs and Bosnian Moslems violated the ‘safe area’ resolution. The
ICTY, in cases such as Prosecutor v. Radislav Krstić heard and believed evidence of a
deliberate Bosnian Serb strategy to limit access by international aid convoys into the
enclave. Colonel Thomas Karremans (the Dutch Battalion Commander in Srebrenica)
testified that after 26th April no convoy could reach the enclave, that even his personnel
were prevented from returning to the enclave by Bosnian Serb forces, and that
equipment and ammunition were also prevented from getting in. 16 The evidence of
Colonel Thomas Karremans, used in the cases against Radovan Karadzic and Ratko
Mladić, was that:
That meant for the population, for instance, that their situation was poorer
than poor. There was starvation for the refugees. Some died by the
starvation […] hundreds of inhabitants of the enclave lived literally on the
garbage collection point.17
Essentials, like food, medicine and fuel, became increasingly scarce. 18 The Trial
Chamber in the case of Naser Orić found that
Bosnian Serb forces controlling the access roads were not allowing
international humanitarian aid – most importantly, food and
medicine – to reach Srebrenica. As a consequence, there was a
constant and serious shortage of food causing starvation to peak in
the winter of 1992/1993. Numerous people died or were in an
extremely emaciated state due to malnutrition. Threatened by
starvation, almost everyone from Srebrenica participated in searches
for food in nearby villages and hamlets under Bosnian Serb control.
These searches were very dangerous; many stepped on mines or
were wounded or killed by Serbs.19
15
Prosecutor v. Radislav Krstić (Trial Judgement) (2 August 2001), para 18.
16
ibid para 22.
17
Transcript from the International Criminal Tribunal for the former Yugoslavia. Retrieved on 13 June
2013, page 636, para. 7,8,9 <http://www.icty.org/x/cases/mladic/trans/en/960704it.htm> [accessed 2
April 2019].
18
n (15) para 22.
19
Prosecutor v. Naser Orić (Trial Judgement), IT-03-68-T (30 June 2006) para 110.
10
Statement from voice on the tape of General Mladić says:
"I would not have taken Srebrenica or Zepa if I had not starved them in the
winter. Since February, I let through only one or two convoys." 20
Mladić stated that starvation by blocking aid conveys was an essential tool that helped
him accomplish his tool in taking over Srebrenica.
Mr. Jones an attorney-at-law defending Naser Orić described the situation in
Srebrenica as following:
That's how it was in Srebrenica in the very time covered by this indictment;
a daily struggle to live in defiance of the enemy that would starve its
inhabitants into submission. Which brings us to the third word: Starvation.
Srebrenica in the period covered by this indictment was starving. For
months the Serbs refused to allow UNHCR to bring in food and medicines.
Why would they? They were using starvation as a tool of war against
Srebrenica's Muslims as it was used, for example, in the Nigerian civil
war.21
It also reported that ‘Bosnian Serb shelling increased, while access for U.N.
humanitarian aid convoys decreased. Residents were reported to be on the verge of
starvation, and the humanitarian crisis in the area became dire.’22
2.2 Detention camps
There are said to have been about 800 places of detention in Bosnia and
Herzegovina during the war.23 Abuse was endemic in all of them, but the author has
identified the following cases from detention camps as involving litigation on enforced
or deliberate starvation:
20Tape-recording of Mladić, Transcript from the International Criminal Tribunal for the former
Yugoslavia Retrieved on 6 October 2004, 252 para 22.
21
Mr. Jones, Transcript from the International Criminal Tribunal for the former Yugoslavia, Retrieved
on 7 December 2016, 444538 para 21-23
Human Rights Watch, ‘The Fall of Srebrenica and the Failure of UN Peacekeeping’, (Human Rights
22
Watch., October 15 1995).

23
Elameri Skrgic Mikulic, ‘600 Wartime Detention Sites Identified in Bosnia’, Balkan Transitional
Justice (13 December 2016) < https://balkaninsight.com/2016/12/13/600-wartime-detention-sites-
identified-in-ex-yugoslavia-12-13-2016/ > accessed 3 April2019.
11
Prosecutor v Milorad Krnojelac (Trial and Appeal Judgements)
Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković (Trial
Judgement)
Prosecutor v. Momcilo Krajišnik (Trial and Appeal Judgements)
Prosecutor v. Biljana Plavšić (Sentencing Judgement)
Prosecutor v. Radoslav Brđanin (Trial and Appeal Judgements)
Prosecutor v. Milomir Stakić (Trial and Appeal Judgements)
Prosecutor v. Miroslav Kvočka et al. (Trial and Appeal Judgements)
Prosecutor v. Duško Tadić aka "Dule" (Trial and Appeal Judgements)24
Prosecutor v. Duško Sikirica, Damir Došen and Dragan Kolundžija (Trial and
Appeal Judgements)
2.2.1 Foča Kazneno-Popravni Dom (KP-Dom)
The relevant cases from this camp are:
Prosecutor v. Milorad Krnojelac (Trial Judgement and Appeal Judgements)

Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković (Trial
Judgement)
Prosecutor v. Momcilo Krajišnik (Trial Judgement)
According to the Trial Chamber in Prosecutor v. Milorad Krnojelac, KP Dom

was the main detention center for Muslims. Beginning on or around 14th April 1992,
the Foča Kazneno-Popravni Dom (‘KP Dom’), a prison, became the primary detention
center for Muslim and other non-Serb men, as well as for a few Serbs who had tried to
avoid military service.25 The Trial Chamber in Prosecutor v. Momcilo Krajišnik found
that:
24
The Trial Judgement in this case is actually entitled ‘Opinion and Judgement’, but this study uses
Trial Judgement for the purposes of consistency.
25
Prosecutor v. Milorad Krnojelac (Trial Judgement), IT-97-25-T (15 March 2002) para 2.
12
Detainees in KP Dom in Foča were given starvation rations and suffered
extreme weight loss. In addition, they were not allowed to receive visits and
could therefore not supplement their meagre food rations.26
Furthermore, the Trial Chamber compared the condition of Muslim detainees and
Serb detainees to illustrate the discriminatory treatment and the deliberate starvation
strategy.
The detainees had to endure brutal living conditions at KP Dom where they
were kept in cramped conditions without heating and without adequate food
and hygiene facilities. Medical care was insufficient. Muslim detainees,
unlike the Serb detainees, were fed starvation rations so that many suffered
from severe weight loss and other health problems. They were not allowed
to receive visits after April 1992 and therefore could not supplement their
meagre food rations and hygienic supplies.27
2.2.2 Manjača camp
Prosecutor v. Momcilo Krajišnik (Trial and Appeal Judgement)

Prosecutor v. Biljana Plavšić (Sentencing Judgement)
Prosecutor v. Milomir Stakić (Trial Judgement)
Prosecutor v. Radoslav Brđanin (Trial Judgement)
According to the Trial Chamber in Prosecutor v. Radoslav Brđanin,
The food in the camp was extremely insufficient, consisting of a thin

broth and a slice of bread twice a day. As a result, many detainees
lost weight and became very thin. Some detainees were so hungry
they resorted to eating grass. 28
According to the Trial Chamber’s Sentencing Judgement in Plavšić,
26
n(10) para.796.
27
ibid para 646.
28
Prosecutor v. Radoslav Brdjanin (Trial Judgement), IT-99-36-T (1 September 2004) para 912.
13
[. . .], Manjača was a "camp of hunger" and when there was food
available, it was of a very poor quality. The inmates were given
two small meals per day, which usually consisted of half a cup of
warm tea, which was more like warm water, and a small piece of
thin, "transparent" bread. Between two and a half thousand men
there were only 90 loaves of bread, with each loaf divided into 20
or 40 pieces. Most inmates lost between 20 and 30 kilograms of
body weight while they were detained at Manjača. The witness
believes that had the ICRC and UNHCR not arrived, the inmates
would have died of starvation.29
2.2.3 Omarska camp

Prosecutor v. Duško Tadić aka "Dule" (Trial and Appeal Judgements)
Prosecutor v. , Damir Došen and Dragan Kolundžija (Judgement on Defense
Motions to Acquit and Trial Judgement)
Prosecutor v. Momcilo Krajišnik (Trial Judgement)
Omarska camp came to be associated with starvation rations and weight loss.
According to the Trial Chamber in Prosecutor v. Radoslav Brđanin,
As a rule, food at Omarska amounted to starvation rations. Detainees were

fed once a day: a small piece of bread, stew and some cabbage. The food
was usually spoiled. By contrast, the camp personnel enjoyed proper food.
Detainees were forced to eat their food very quickly, in the space of
minutes, or else they would be beaten. As a result of these conditions,
detainees lost considerable weight.30
29
Prosecutor v. Biljana Plavšić (Sentencing Judgement), IT-00-39&40/1 (27 February 2003) para 48.
30
n (28) para 932.
14
The food conditions in Omarska were described in Prosecutor v. Duško Tadić aka
"Dule" (Trial Judgement):
Only one meal a day was provided at Omarska for prisoners, consisting of
a plate of watery potato soup and a small slice of bread or just rotten beans,
and the suffering from hunger was acute. The prisoners were fed in batches
of about 30 at a time and had to run to and from their daily meal, often being
beaten by guards as they came and went. They were then allowed only a
minute or two in which to eat. When they first arrived at the camp, some
prisoners did not, however, receive either food or water for several days.
Many of those confined in the white house received no food at all during
their time there. Some prisoners, particularly those already badly injured by
beatings in the camp, often chose to miss their daily meal for fear of further
beatings on the way to, or return from, the meal. Some prisoners lost 20 to
30 kilograms in body-weight during their time at Omarska, others
considerably more.31
2.2.4 Keraterm camp
Prosecutor v. Miroslav Kvočka et al. (Trial Judgement)

Prosecutor v. Milomir Stakić (Trial Judgement)
Prosecutor v. Duško Sikirica, Damir Došen and Dragan Kolundžija
(Judgement on Defense Motions to Acquit and Trial Judgement)
In Keraterm, the food conditions were insufficient and resulted in many detainees
suffering considerable weight loss. In Prosecutor v. Duško Sikirica, Damir
Došen and Dragan Kolundžija, the Trial Chamber held that:
Food was extremely insufficient and was limited to a meal a day, which
detainees only had a few minutes to eat. There is evidence that the
conditions, which the detainees were forced to endure in the camp
amounted to inhuman treatment. Many witnesses testified as to the
meagre portions of food they received in the Keraterm camp and some
31
Prosecutor v. Duško Tadić aka "Dule" (Opinion and Judgement), IT-94-1-T (7 May 1997) para.160.
15
testified as to the extent of their weight loss over the period they
remained in detention.32
The Trial Chamber heard evidence that the detainees were fed a
starvation ration of food of poor quality once a day, while on some occasions
they received no food at all, either at the beginning, because the distribution of
food had not yet been organized, or because there was not enough food for
everyone.
2.2.5 Trnopolje camp
The author has identified the following cases as relevant:

Prosecutor v. Duško Tadić aka "Dule" (Trial Judgement)
Prosecutor v. Duško Sikirica, Damir Došen and Dragan
Kolundžija (Judgement on Defense Motions to Acquit and Trial Judgement)
The camp authorities at Trnopolje supplied no food. In Prosecutor v. Duško Tadić aka
"Dule", the Trial Chamber confirmed that:
The conditions inside the camp were “unacceptable”. Food was not
organized at the camp and there was not enough of it. Initially it would be
brought by relatives into the camp or bought from the local population. No
food was supplied by the camp authorities at Trnopolje. Because there was
no food, in the beginning people ate what they brought with them and after
that they lived on the aid of such members of the local population as were
able to get through to bring them food.33
32
Prosecutor v. Duško Sikirica, Damir Došen and Dragan Kolundžija (Judgement on Defense Motions
to Acquit) IT-95-8-T (3 September 2001) para 139.
33
n(31) para 174.
16
Because of the lack of food and the insanitary conditions at the camp, the
majority of inmates, one estimate is as high as 95 percent, suffered from
dysentery.34
2.2.6 Čelebići camp
There is just one case that pertains to this camp, but because it was one of the
first cases, it has had a particularly important impact on the jurisprudence of the ICTY.
The case is that of
Prosecutor v. Zdravko Mucić aka "Pavo", Hazim Delić, Esad Landžo aka "Zenga",
Zejnil Delalić (Trial and Appeal Judgements).
The Trial Chamber heard many witnesses regarding the food inadequacy in Čelebići:
Many of the witnesses who appeared before the Trial Chamber provided
testimony concerning the inadequacy of the food provided to the detainees
in the Čelebići prison-camp. Although it appears from this evidence that the
size and quality of the rations varied somewhat during the relevant time-
period, the Trial Chamber has been left in no doubt that the food supplied
to the detainees fell far short of any acceptable standard.35
The Trial Chamber has found that conditions of detention in the Čelebići
camp prison-camp were harsh and, indeed, inhuman. ‘The feeding conditions
were at starvation level, medical health and sanitary conditions were inadequate
and indeed deplorable.’36
34
ibid para 177.
35
Prosecutor v. Zdravko Mucić aka "Pavo", Hazim Delić, Esad Landžo aka "Zenga", Zejnil Delalić
(Trial Judgement), IT-96-21-T (16 November 1998) para 1092.
36
ibid para 1242.
17
CHAPTER 3: EXAMINATION OF THE CASES ON THE BASIS OF THE
RESEARCH QUESTIONS
The four research questions being probed in this chapter are (1) How was the
enforced or deliberate starvation charged? (2) What evidence was considered and what
was the standard of evaluation? (3) What was the line dividing starvation, and enforced
or deliberate starvation? (4) What were the challenges faced by Prosecution and
Defense in these cases?
These questions will be tracked through the cases that have been identified as
relevant to enforced or deliberate starvation, as explained in chapter 2. This chapter will
engage in raw data and the analysis will continue in chapter 4.
3.1 Research question 1: How was the enforced or deliberate starvation

charged?
ICTY prosecutors brought charges and tried defendants for withholding food
from populations under their control and their failure to provide detainees with food.
These and other acts of deliberate starvation were prosecuted extensively at the ICTY
as Crimes against humanity, War crimes and Genocide. The ICTY tried defendants
from different levels for contributing in intentionally starving the population. Butler
explains that:
Article 7(1) of the ICTY Statute ascribes responsibility to those who

‘planned, instigated, ordered committed or otherwise aided and abetted in
the planning, preparation or execution of a crime.’ This catches every level
of state authority that perpetrates famine crimes, from the head of state who
plans, to the soldier on the ground who carries out the orders. As defined
above, faminism must be carried out ‘knowingly’ by the perpetrator,
placing the offender well within the mens rea standard. For intentionally
committed famines, that is when starvation is intentionally inflicted upon a
civilian population.37
37
Daniel Butler, ‘Enforced Starvation: Exploring Individual Criminal Responsibility for State-Induced
Famines’(2007) <
https://www.nottingham.ac.uk/hrlc/documents/publications/hrlcommentary2007/enforcedstarvation.pdf
> accessed 10 May 2019
18
The ICTY’s Statute does not mention starvation, but the commission and/or
omission of deliberate starvation acts were indirectly charged under different
categories of the statute. In Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim
Delić & Esad Landžo (Trial Judgement), the Prosecution argued that the starvation of
detainees was prohibited: ‘As a matter of law, a detaining authority is not allowed to
starve or otherwise keep prisoners in clearly inhumane and life threatening
conditions.’38
3.1.1. Crimes against Humanity
Inhumane acts, treatment or conditions

In many cases starvation charges were brought under the scope of inhumane
acts based on the living conditions in detention camps. An example is the Krnojelac
case. The defendant was charged with, and convicted of, inhumane acts based on living
conditions as a crime against humanity as the non-Serb were exposed to the freezing
temperatures of the winter, and they were fed starvation rations which led the detainees
to suffer considerable weight loss ranging from twenty to forty kilograms. 39 He
participated in the prolonged and routine imprisonment of non-Serb civilians under
inhumane conditions by providing the detention facilities, by being in the position of
camp administrator and by establishing living conditions characterised by inhumane
treatment including starvation.40
The phrase ‘inhumane conditions’ as used in cases as such that concerning the
Čelebići camp, is a factual description relating to the nature of the general environment
in which detained persons are kept and the treatment, which they receive. 41 One of the
accused in that case, Zdravko Mucić, was charged for a range of inhumane acts
including the quantity of food provided to the Čelebići inmates:
Mucić was also found to be directly responsible for the inhumane

conditions at Čelebići. It was shown during the trial that an atmosphere of
terror prevailed in the camp, that the food provided was at starvation level,
and that medical health and sanitary conditions were inadequate and
38
n (35) para 555.
39
n(25) para 523.
40
The Prosecutor of the Tribunal against Milorad Krnojelac Also Known As "Mico" (Third Amended
Indictment), IT- 97- 25-I (25 June 2001) para5.2.
41
n(38)para 556.
19
deplorable. The guards were hostile, and severe beatings, torture and
humiliation of detainees were the norm. No one appeared to care whether
the detainees survived. Zdravko Mucić was sentenced to 9 years
imprisonment.42
The Omarska and Keraterm camp cases also involved starvation charged as
inhumane acts. Miroslav Kvočka, Milojica Kos Mladen Radić and Zoran Žigić were
charged for their roles in Crimes against Humanity and Violations of the Laws or
Customs of War:
Living conditions at Omarska and Keraterm were brutal and inhumane.

The two camps were operated in a manner that resulted in the physical
debilitation or death of the non-Serb detainees. The general living
conditions were abject. The inadequate supply of water the detainees
received at both camps was usually foul. They had no change of clothing,
no bedding, and virtually no medical care. The detainees were fed
starvation rations once a day.43
Persecution
As noted by the ICTY Trial Chamber in Krnojelac, violation of fundamental rights

amounting to persecution, can take various forms, and there is no comprehensive list of
acts that qualify. Among other things, international tribunals have tried defendants for
persecution based upon “destruction of property or means of subsistence, destruction
and damage of religious or educational institutions, unlawful detention of civilians,
harassment, humiliation and psychological abuse, and violations of political, social, and
economic rights.”44
The case of Prosecutor v. Goran Hadžić involved an accused charged

with a range of acts including starvation as the Crime against Humanity of
persecution:
42
Balkan, View From The Hague, 24 November 2004, 6.
<http://www.icty.org/x/file/Outreach/view_from_hague/balkan_041124_en.pdf > accessed 22 April
2019.
43
The Prosecutor v. Miroslav Kvočka, Milojica Kos, Mladen Radić, Zoran Žigić, (Amended
Indictment) IT-98-30/1 (26 Oct 2000) para 8 .
44
Diana Kearney, ‘Food Deprivations as Crimes Against Humanity’ (2013) New York University
Journal of International Law and Politics (JILP), Vol. 46, 2013, 253
20
d) The physical and psychological mistreatment of Croats and other non-
Serbs in the detention facilities described in paragraphs 40 to 42,
including but not limited to beatings, sexual assault, other forms of
torture, overcrowding, starvation, inadequate medical care, and mock
executions. The living conditions in these detention facilities were
inadequate and characterised by inhumane treatment, overcrowding,
starvation, forced labour, inadequate medical care, and constant physical
and psychological assault, including mock executions, torture, beatings
and sexual assault. 45
The former President of Serbia, Slobodan Milošević, faced a persecution charge

that included starvation:
These persecutions were committed on the discriminatory grounds of

political affiliation, race or religion and included:
The establishment and perpetuation of inhumane living conditions
against Bosnian Muslim, Bosnian Croat and other non-Serb civilians,
within the above mentioned detention facilities. These living conditions
were brutal and characterised by inhumane treatment, overcrowding,
starvation, forced labour and systematic physical and psychological
abuse, including torture, beatings and sexual assault.46
3.1.2 Genocide
In ICTY cases, starvation was among the brutal conditions allegedly calculated
to bring physical destruction amounting to genocide and complicity in genocide. For
instance, in Prosecutor v. Radoslav Brđanin, the accused was charged with Genocide
for deliberately inflicting upon the detained protected group ‘conditions calculated to
bring about physical destruction through ‘beatings or other physical maltreatment as
described above, starvation rations, contaminated water, insufficient or non-existent
medical care, unhygienic conditions and lack of space.47
45
The Prosecutor v. Goran Hadžić, Notice Of Filing Of Second Amended Indictment, IT-04-75-PT
(22 March 2012) 42.
46
The Prosecutor Of The Tribunal Against Slobodan Milosevic initial Indictment, IT-01-51-I, para
35(c ).
47
n (28) para 14(c ).
21
Between about 1 April 1992 and 31 December 1992, Radoslav Brđanin and
Momir Talić acting individually or in concert with each other and also with
others in the Bosnian Serb leadership, planned, instigated, ordered,
committed or otherwise aided and abetted in the planning, preparation, or
execution of a campaign designed to destroy Bosnian Muslims and Bosnian
Croats, in whole or in part, as national, ethnical, racial, or religious groups
the execution of the above campaign included: detaining Bosnian Muslims
and Bosnian Croats under Conditions Calculated To Bring About Physical
Destruction. The brutal and inhumane conditions in the camps and
detention facilities included inadequate food (often amounting to starvation
rations), contaminated water, insufficient or non-existent medical care,
inadequate hygiene conditions and lack of space.48
The ICTY charged those who aided and abetted or facilitated the commission of
genocide in respect to starvation with Genocide of Complicity in Genocide for
example:
From on or about 1 March 1992 until 31 December 1995, Slobodan

Milošević, acting alone or in concert with other members of the joint
criminal enterprise, planned, instigated, ordered, committed or otherwise
aided and abetted the planning, preparation and execution of the
destruction, in whole or in part, of the Bosnian Muslim national, ethnical,
racial or religious groups. The detention of thousands of Bosnian
Muslims in detention facilities within Bosnia and Herzegovina, including
those situated within the territories listed above, under conditions of life
calculated to bring about the partial physical destruction of those groups,
namely through starvation, contaminated water, forced labour,
inadequate medical care and constant physical and psychological
assault.49
3.1.3 War Crimes
Violations of the laws and customs of war

No matter what the type of conflict, the parties engaged in hostilities have a
duty to observe their obligations under international humanitarian law, and in particular
48
The Prosecutor Of The Tribunal Against Radoslav Brđanin, Sixth Amended Indictment,IT-99-36-T,
para 37 (3).
49
The Prosecutor of the Tribunal against Slobodan Milosevic (Indictment), IT-01-51-I (22 November
2001) para 32 (d).
22
the Geneva Conventions. 50 The ICTY tried cases where enforced or deliberate
starvation was prosecuted as the war crime of cruel treatment. For example, Milorad
Krnojelac whose case has already been discussed, was also found guilty of the war
crime of cruel treatment as a breach of Common Article 3 of the Geneva Conventions.
This related to the living conditions enforced on non-Serb detainees at the Kazneno-
Popravni Dom (KP Dom) prison where he served as warden. He was prosecuted and
convicted of superior responsibility. A major aspect of the living conditions that
contributed to their rising to the level of cruel treatment as a war crime was the
provision of ‘starvation rations’ to non-Serb prisoners.51
Grave breaches of the Geneva Conventions of 1949
The Trial Chamber in Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim

Delić & Esad Landžo determined that the Čelebići camp’s detainees were protected
persons’ and subject to the grave breaches provisions of the Third Convention dealing
with the treatment of Prisoners of War.52 On that basis, the controlling forces had a duty
to treat them as being part of a protected group. The four accused were charged with
both forms of war crime, under count 46 of the Indictment with wilfully causing great
suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute,
and under count 47 of the Indictment with cruel treatment, a violation of the laws or
customs of war, punishable under Article 3 of the Statute, for his alleged acts and
omissions with respect to the following circumstances alleged to have existed in the
Čelebići prison-camp.
It can be observed by now that there is no reference to ‘enforced’ or ‘deliberate’ in

conjunction with ‘starvation’. And that the same behaviour can be charged under
different legal concepts multiple times.
50
Geneva Conventions (12 August 1949)
51
n(3)1113 at 1148.
52
International Committee Of The Red Cross, Convention (III) relative to the Treatment of Prisoners
of War. Geneva, 12 August 1949.
23
3.2 Research question 2: What evidence was considered and what was the
standard of evaluation?
The ICTY heard and examined much evidence of hunger. In some cases, this was
starvation. In some cases it was criminal and linked to the wrongful actions or inactions
of the accused. There is no equation in international law for to proving that the
starvation was criminal, i.e. deliberate or intention. However, the judges have
considered many factors such as:
 the amount and consistency of the food;
 the quality of the food (leftovers, rotten, spoiled inedible);
 the physical and psychological suffering of victims as a result of diets;
 how a certain group was fed in comparison to others;
 the orders and organisation of the distribution of the food; and
 Whether the conditions affected everyone.
The testimony of witnesses was generally cross-cutting, meaning that they

provided evidence of multiple of forms of abuse. Many victims appeared before the
court to express how they suffered hunger and starvation. The transcript from the Naser
Orić trial records that:
The father of this family demonstrates how much weight he has lost in
the last 11 months. It is not a famine situation here but it can be best
described as slow starvation. This is what I eat. This is what we eat.
We’ve got nothing to eat. We're starving to death.53
The Trial Chamber in Prosecutor v. Milorad Krnojelac heard the oral testimony of
more than twenty victims. They testified about the serious physical and psychological
consequences as a result of the living conditions at the KP Dom camp:
Edhem Bunda (D 2) He was so hungry that one morning he ate a

hardboiled egg including the shell, and he would eat insects if he could
catch them. Before he was detained, he used to wander in the forest
around Tjentiste to ease his mind, but he could no longer control his
53
Videotape Narrator, Transcript from the International Criminal Tribunal for the former Yugoslavia
Retrieved on 6 October 2004, 252 para 22.
24
actions at the KP Dom because of the strict detention and the severe
hunger he suffered.
FWS-109 (D 5) lost 30 kilograms within a period of three months during

his detention at the KP Dom. He now suffers from high blood pressure,
and requires medical treatment. He suffers from frequent nightmares, and
he is haunted by his experiences at the KP Dom.
FWS-182 (D 13) suffered from an ulcer on the duodenum prior to his

detention at the KP Dom. He had been on a restricted diet, which was not
catered for during his detention.
FWS-111 (D 15) lost 20 kilograms during his detention. His eyesight

deteriorated.
D‘evad Lojo (D 19) lost more than 40 kilograms during his detention. At
one point, he weighed a mere 48 kilograms. Even after the food improved
in the middle of 1993, he found it difficult to regain weight.
FWS-86 (D 22) lost approximately 30 kilograms during his detention at
the KP Dom. He was so hungry that he still feels he will die of hunger
for bread. He cannot walk much, gets tired easily and cannot bend
forward. The poor diet caused some of his teeth to fall out. He has
problems with his urinary tract.
Rasim Taranin (D 23) lost 18 to 19 kilograms while detained at the KP
Dom. His physical suffering was so severe that he found difficulty in
describing it. He was often suicidal in the early days after his release, and
he has received treatment for many years.54
These extracts clearly demonstrate how the victim-witnesses provided first-

hand evidence of how they suffered severe physical and psychological conditions as a
result as a result of food deprivation, poor diet and deliberate starvation. In some cases,
the witnesses spoke of permanent and ongoing pain and suffering. This sort of evidence
was standard for the camp cases. Another series of examples could be provided from
Prosecutor v. Radoslav Brđanin, on the consistency and quality of the food provided
to inmates:
The food in the camp was extremely insufficient, consisting of a thin

broth and a slice of bread twice a day. As a result, many detainees lost
54
n (25) para 147- 165.
25
weight and became very thin. Some detainees were so hungry they
resorted to eating grass.
Food consisted of leftovers from the military police; sometimes the food
had already gone bad, which caused the detainees stomach aches.
Food was severely insufficient – they received a meal consisting of the

soldiers’ leftovers once every two or three days. Sometimes it was bad
and caused the detainees dysentery and stomach problems.
Food was not organised at the camp and there was not enough of it.
Initially it would be brought by relatives into the camp or bought from
the local population.55
Evidence from Prosecutor v. Duško Sikirica, Damir Došen and Dragan

Kolundžija demonstrate starvation ration, food deprivation and mistreatment that the
detainees suffered from:
The Trial Chamber heard evidence that the detainees were fed a
starvation ration of food of poor quality once a day, while on some
occasions they received no food at all, either at the beginning, because
the distribution of food had not yet been organised, or because there was
not enough food for everyone.
There was never enough food for everyone, and detainees from the last
room to be served would not get anything. There was no order of
distribution, and every second day a different room would be served first.
In addition to the inadequacy of the food, the detainees were not always
allowed enough time to eat their meagre portion. The detainees were
given only several minutes in which to eat their ration, or else they would
be beaten. Detainees were also beaten while lining up for food.56
The following extract from Prosecutor v. Miroslav Kvocka demonstrates food

conditions in Omarska and Keraterm camps
Living conditions at Omarska and Keraterm were brutal and inhumane. The
prisoners were fed starvation rations once a day. In addition, in Omarska,
they were given approximately three minutes to get into the canteen area,
eat, and get out. The trip to the canteen was often accompanied by beatings
55
n (28) para. 942.
56
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija (Sentencing Judgement), IT-95-8-
S 13 (November 2001) para 71.
26
and other abuse. Some detainees did not receive food or water for several
days after their arrival in the camp. After that, one meal a day was provided.
Detainees reported that this meal was composed of bean stew that often
consisted of rotten cabbage and sometimes, a piece of stale bread.57
It is clear that there was hunger. But, how was it measured? When did the hunger
become starvation, and when did the starvation become a criminal act? The standards
of evidence required for proving all elements of the crime charged, was, under the ICTY
Statute, beyond reasonable doubt.58 One of the approaches used, in cases involving war
crimes, was to measure the treatment of civilians against the legal standard regulating
the treatment of civilians in times of armed conflict. The Čelebići trial judgement is
illustrative. The Trial Chamber declared itself ‘bound to apply the legal standards found
for the offences of wilfully causing great suffering or serious injury to body or health
and cruel treatment to this factual category’.59 It went on to explain that
These legal standards are absolute and not relative. Thus, when considering
the factual allegation of inhumane conditions with respect to these legal
offences, no reference should be made to the conditions prevailing in the
area of detention in order to determine what the standard of treatment
should have been. The legal standard in each of the mistreatment offences
discussed above delineates a minimum standard of treatment which also
applies to conditions of detention. During an armed conflict, persons should
not be detained in conditions where this minimum standard cannot be met
and maintained.60
The Krnojelac Trial Chamber also specifically referenced international

humanitarian law, the law applicable in armed conflict. It has measured the food with
the legal standard regulating the treatment of civilians in times of armed conflict:
The conditions under which non-Serbs were detained were below any
legal standard regulating the treatment of civilians in times of armed
conflict. Non-Serb detainees were given insufficient food, as a result of
which many of them suffered substantial weight loss, sometimes more
than 40 kilograms or up to a third of their weight.61
57
Prosecutor v. Miroslav Kvočka et al. (Trial Judgement), IT-98-30/1-T (2 November 2001) para 8.
58
UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as
amended on 17 May 2002), 25 May 1993, Article 21(3)
59
n (35)para 556.
60
ibid para 557.
61
n (25) para 193.
27
One of the approaches that the Trial Chambers used was the use of the objective
probability test. It was applied in the Radoslav Brđanin trial. The extract below shows
that it was not used to measure the starvation but it was used in considering if enforced
or deliberate starvation went towards the physical destruction of the group:
The Trial Chamber has focused on the objective probability of these

conditions leading to the physical destruction of the group in part. In
evaluating this objective probability, the Trial Chamber has focused on the
actual nature of the “conditions of life” and on the length of time that
members of the group were subjected to them. It has also been guided,
when available, by factors such as the characteristics of the members of the
group upon which they were inflicted.62
3.3 Research question 3: What was the line dividing starvation, and enforced or
deliberate starvation?
From the victim testimony discussed under the previous research question, we
see that starvation was not a mere shortage of food as an unfortunate consequence of
war. It was rather an enforced and deliberate strategy of discrimination, abuse, torture
and ethnic cleansing.
3.1 Discrimination
One of the parameters for identifying illegal behavior was differential treatment that
amounted to prohibited discrimination. The cases brought forth much evidence of
discrimination between ethnic groups (for example Serb and non-Serb detainees) or the
army and the detainees in regards of food.
In Prosecutor v. Krnojelac, the Trial Chamber noted that “perhaps the most
marked contrast between the treatment of Serbs and non-Serbs was with regard to
food, both in quantity and in quality.”63
The Trial Chamber accepts that there may have been a general shortage of
food in the Foča region during the conflict, but it is satisfied that there was
62
n (28) para 906.
63
n (25) para 442.
28
a deliberate policy to feed the non-Serb detainees barely enough for their
survival. All non-Serb detainees suffered considerable weight loss ranging
from 20 to 40 kilograms during their detention at the KP Dom.64
Muslim detainees, unlike the Serb detainees, were fed starvation rations so
that many suffered from severe weight loss and other health problems. They
were not allowed to receive visits after April 1992 and therefore could not
supplement their meagre food rations and hygienic supplies. For example,
detainees in KP Dom in Foča were given starvation rations and suffered
extreme weight loss.65
Direct Evidence of criminal intent
Sometimes there would be direct evidence of criminal intent. For

example, the judges heard evidence that political and military leaders
blocked aid convoys as a way to force population to submit for their
demands. In one instance, Momčilo Mandić, then Minister of Justice
of the Bosnian-Serb Republic, was recorded having a telephone
conversation with an associate boasting that ‘we are holding Turks
under siege [in Sarajevo]. We’ll starve them a bit’.66
Another example of a clear criminal intent can be seen from the evidence of Mr.
John Jones in the case of Prosecutor v. Naser Orić on 14 November 2005:
Q. Now, we saw the words in this document "do not feed the Muslims."
Did you understand that to be part of the Serbs' aim in blocking
UNPROFOR from entering Srebrenica when you were there in March
1993? In other words, that they were essentially trying to starve the
Muslims into submission?
A. Well, the fact that they would not allow the humanitarian aid convoys
to get in or to get in on a regular basis and the fact that the US air force
had to drop food, then that would be the case. 67
Q. And is that starving, to make someone submit, is that a classic albeit,
now, illegal siege tactic?
A. Certainly that would be a tactic in making somebody submit. If you're
blocking off the roads so they can't get food, they're not letting UN
convoys in, and it would probably be obvious that if the Americans had
64
ibid para 139.
65
n (10) para 796.
66
ibid para 953.
67
n (21) 13639 para 7-9.
29
to drop rations from the sky, that was the only way to get food into the
people to try and keep them alive.68
There is no doubt that enforced or deliberate starvation tactics was a war tool
deliberately engineered to achieve political aims.
3.4 Research question 4: What were the challenges faced by Prosecution in these
cases?
A challenging question the prosecution had to face is proving that people died as
a result of enforced or deliberate starvation.
In the former Yugoslavia, a commission of legal experts appointed by

the UN Security Council considered whether this crime was committed
during the siege of Sarajevo but concluded, based on the “tendency of
both sides [of the conflict] to control food, water and electricity for
publicity purposes, the intermingling of military forces and the civilian
population and the fact that no one appears to have died during the siege
from starvation, dehydration or freezing,” that the crime was
inapplicable.69
The fact that no one appears to have died during the siege from starvation,
dehydration or freezing, combine to make difficult the establishment of a solid case that
starvation is being used as a method of warfare. The conduct of this matter has been
deplorable, but its criminality is debatable.
Where there were deaths, it has often not been clear if they were due to starvation.
This is about causation. The transcripts show that this is often a matter of dispute
between prosecution and defence. An example is the following exchange between Judge
Orie and witness Mr. Lukic the case of Mladić
Q. Do you know that deaths from starvation were recorded in
Srebrenica on the 6th of July or before that or after that, on any date for
that matter?
A. I don't know that deaths from starvation were recorded Srebrenica.
This is nothing but propaganda that they engaged in very often in order
to get as much humanitarian aid as possible.70
68
ibid 13669 para 14-21
69
n (3) 1113 -1145
70
Mr. Lukic, Transcript from the International Criminal Tribunal for the former Yugoslavia. Retrieved
on 29 October 2014, 27515 para 17- 21.
30
Another major challenge faced in these cases was the lack of relevant and
modern jurisprudence. Today, litigants may refer to the ICTY’s jurisprudence, but for
those dealing with starvation cases at the ICTY, they did not have that level of
guidance from case law. It had to be built up. For example in Prosecutor v. Radoslav
Brđanin, the prosecution raised the issue of whether deprivation of food could be
considered physical violence. However, the Trial Chamber found the evidence to be
lacking, and it could not ‘conclude that the conditions of life inflicted upon detainees
in the following camps and detention facilities amounted to conditions calculated to
bring about the physical destruction of the group’.
Physical violence. The term physical violence does not appear anywhere
in the Statute. The Trial Chamber finds that physical violence may
comprise treatment that does not amount to torture as defined above, such
as “conditions in which detainees are forced to live, such as overcrowded
conditions, deprivation of food, water and sufficient air, exposure to
extreme heat or cold, random beatings of detainees as a general measure
to instil terror amongst them and similar forms of physical assaults not
amounting to torture …”. Such treatment may fall under the crime of
persecution if it reaches the same level of gravity as the other crimes
against humanity enumerated in Article 5 of the Statute.71
The central challenge is the concept of prosecuting enforced or deliberate

starvation is new and unprecedented. The prosecution lacks sufficient case law to
return to for guidance in complicated challenges.
In the following chapter, the author will consider the implications of what the four
research questions have revealed about the adjudication of enforced or deliberate
starvation at the ICTY.
71
n (28) para 1005.
31
CHAPTER 4: ANALYSIS AND FINDINGS
This chapter will analyse the findings that emerged from Chapter 3.
4.1 Analysis of the findings from research question one: How was the enforced or
deliberate starvation charged?
It has been demonstrated that existing international criminal law can be applied to cases
of enforced or deliberate starvation. Starvation that is linked to criminal conduct has
been prosecuted at the ICTY as a war crime, an act of extermination comprising a
crime against humanity and as an act of genocide by ‘deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in whole or in
part’. Convictions have been entered for all bar the genocide charges in this respect.
In this section the author will analyse how enforced or deliberate starvation were
fitted under the following crimes.
4.1.1 Crimes against Humanity
Inhumane Acts
The majority of the crime against humanity convictions where food was an issue
are from this category of crime. The ICTY judges convicted individuals of
inhumane acts based on their roles in the living conditions in detention camps.
The judges found that living conditions at some camps like Omarska and
Keraterm were brutal and inhumane, and their considerations engaged with the
inadequate food and starvation rations. Without expressly using the terms, the
judges considered enforced or deliberate starvation to be an inhumane act that
met the required gravity to be a crime against humanity. Concretely, starvation is
not a listed core crime. So, the jurisprudence establishes that an un-enumerated
act has to be of a similar level of gravity as the acts that are listed. Denying food
or other basic goods such as medicine may constitute inhuman acts that inflict
32
great suffering, or serious injury to body or to mental or physical health. The
convictions were secured in cases where starvation was deliberate or enforced,
not accidental or a consequence of the situation of armed conflict. The case do
show that:
Specific inhumane acts must be proven, rather than merely showing

general mistreatment of a civilian population. The perpetrator of an
‘other inhumane act’ must possess a mens rea of at least recklessness
(dolus eventualis) when committing the specific inhumane acts
alleged.72
This dissertation considered several cases from the Omarska camp, as

they were relevant for starvation. These cases illustrate how the judges used
existing law to guide them to the finding that ‘the specific atrocities charged’,
which included the abuse of prisoners through deliberate or enforced starvation,
‘were part of a systematic attack on the civilians who were imprisoned there and
this ‘would have had to be known to all who worked in or regularly visited the
camp.’’73
Persecution
None of the acts that amount to persecution are listed in the ICTY Statute.
The content of persecution as a crime against humanity has had to be worked out
by the judges through the cases before them. The ICTY’s jurisprudence
eventually settled on the following elements for the crime of persecutions:
an act or omission that: (i) discriminates in fact and denies or infringes
upon a fundamental right laid down in international customary or
treaty law (actus reus); and (ii) is carried out deliberately with the
intention to discriminate on one of the listed grounds, specifically race,
religion, or politics (mens rea).74
72
n (3) 1148.
73
Patricia M Wald, ‘Genocide and Crimes Against Humanity’, 6 Wash. U. Global Stud. L. Rev. 621
(2007) 630.
Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24
74
March 2016, Volume I of IV (TC) (24 March 2016) para 497.
33
So no concrete act is described, and as has been well noted by commentators and
judges, persecution can be seen as an ‘umbrella’ charge. 75 Chapter 3 of this study
reviewed the cases where accused persons faced a persecution charge that included
starvation. None of these cases specifically mentioned the ‘enforced’ or ‘deliberate’
aspect, but it was clear that this is what they were concerned with. Also, none of these
cases involved a single act, but the starvation was one of several acts of omissions that
were inflicted in a discriminatory way. From this we see enforced or deliberate
starvation by denying food from detainees on discriminatory basis fits under the
umbrella of persecution.
4.1.2 Genocide
As seen in Chapter 3, starvation was relevant to some of the ICTY’s genocide

cases. The judgements in Prosecutor v. Radoslav Brđanin discussed starvation in terms
of ‘the deliberate imposition of conditions of life calculated to bring about the physical
destruction of the protected group’, a core act listed in the Genocide Convention and
repeated in the ICTY Statute. This act ‘covers methods of physical destruction, other
than killing, whereby the perpetrator ultimately seeks the death of the members of the
group,’ such as ‘deprivation of food’.
The Trial Chamber in Prosecutor v. Radoslav Brđanin correctly summarised this

jurisprudence as:
The underlying acts covered by Article 4(2) (c) are methods of

destruction that do not immediately kill the members of the group, but
ultimately seek their physical destruction. Examples of such acts
punishable under Article 4(2) (c) include, inter alia, subjecting the
group to a subsistence diet; failing to provide adequate medical care;
systematically expelling members of the group from their homes; and
generally creating circumstances that would lead to a slow death such
as the lack of proper food, water, shelter, clothing, sanitation, or
subjecting members of the group to excessive work or physical
exertion.76
75
n (28) para 631.
76
n (28) para 691.
34
This allowed starvation to fit among the brutal conditions allegedly calculated to
bring physical destruction amounting to genocide and complicity in genocide.
Many defendants were charged with genocide or complicity of genocide
depending on their role.
4.1.3 War Crimes
At the ICTY, war crimes have been prosecuted under two provisions: grave
breaches of Geneva Conventions of 1949 (Article 2) and violation the laws or customs
of war (Article 3). It is well known that international humanitarian law has several
provisions that specifically address food. Examples include: Article 55 of Convention
(IV) that set a duty for the Occupying Power of ensuring the food and medical supplies
of the population,77 Article 23 of Convention (IV) that obliges all Contracting Party to
allow free passage of all consignments of medical and hospital stores and permit the
free passage of all consignments of essential foodstuffs78 and Article 89 of Convention
(IV) that requires daily food rations for internees shall be sufficient in quantity, quality
and variety to keep internees in a good state of health and prevent the development of
nutritional deficiencies.79 The issue is whether breaches of these rules could amount to
enforced or deliberate starvation constituting war crimes.
Starvation is not specifically mentioned as a grave breach in statutes,
conventions or Protocols. However, the Appeal Chamber of the ICTY confirmed in
the Tadić case that even if the Geneva Conventions and Protocols do not explicitly
stipulate that a prohibited act constitutes a crime, it is still possible to establish
criminal responsibility for such an act.80 In the cases examined under this research
question in Chapter 3, such as Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim
Delić & Esad Landžo the four accused were charged with grave breaches of the
Geneva convention of 1949, under article 2 of the statute as the detainees at the
77
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention) 12 August 1949, 75 UNTS 287, art 55.
78
ibid art 23.
79
ibid art 86.
Tadić Appeal on Jurisdiction, op. cit. (note 14), para. 128. The ICRC Commentary on the
80
Conventions states that the list of grave breaches is not to be taken as exhaustive and that criminality
may extend beyond grave breaches in any case. Op. cit. (note 26), ad, art. 50, p. 371.
35
Čelebići camp were “protected persons” and subject to the grave breaches provisions
of the Third Convention dealing with the treatment of Prisoners of War.
The ICTY has demonstrated that prosecuting enforced or deliberate starvation in both
international and non-international armed conflicts as war crimes is possible and
credible.
“What is inhumane, and consequently proscribed, in international wars, cannot but be
inhumane and inadmissible in civil strife.” 81
4.2 Analysis of the findings from research question two: What evidence was
considered and what was the standard of evaluation?
Not everyone was affected by the same conditions, and individuals respond to
food deprivation on an individualized basis. This made the evidence of individual
victims particularly important. The ICTY gave survivors the possibility to speak and
be heard. Victims appeared before the court to express how they suffered in a range of
situations, and in the cases that this dissertation has identified, they were the ones that
included hunger and starvation. The witnesses testified about the quantity, quality of
food and the physical and psychological conditions they suffered as a result of the diets,
such as considerable weight loss, dysentery and weakened physical states. Several
witnesses concur in describing, each in their own manner, the food distributed to the
detainees as consisting mainly of small amounts of bread or rice, together with
vegetable soup sometimes. Some witnesses stated that detainees did not receive
anything to eat for period of time. Unsurprisingly, the guilty verdicts relied heavily on
their testimonies. The present author’s research concurs with the summary below:
The ICTY in Krnojelac convicted a defendant for and enforced or

deliberate starvation acts as related to ‘living conditions’ under crimes
of war and crimes against humanity. There, the Prosecutor relied on
evidence of ‘starvation,’ with some detainees suffering ‘considerable
weight loss ranging from twenty to forty kilograms.’ The Tribunal
also has indicted multiple defendants on the basis of providing
inadequate food in detention and refugee camps. In Meakic, the
Prosecutor indicted five defendants based, in part, on food deprivation
81
Prosecutor v. Dusko Tadić (Appeals Chamber) IT-91-1-AR72, 2 October1995, para 119.
36
of civilians. Similarly, in Sikirica, the Prosecutor relied, in part, on
evidence of ‘starvation’ rations in detention camps to indict the
defendant for genocide, crimes against humanity, and violations of
laws of war.82
However, the ICTY did not use a precise equation or formula for delineating
what constitutes starvation for the purposes of conviction. For example, we can ask:
does malnutrition or hunger amount to starvation? Did the judges need to have experts
come in to tell them if a situation involved starvation, or could they determine that on
the basis of victim and eye-witness evidence? In assessing whether the evidence met
the legal standard of ‘beyond reasonable doubt’, the ICTY judgements reveal two
preferred approaches:
 In armed conflict cases, the legal standard regulating the treatment of civilians
in times of armed conflict was relied on;
 In genocide and crimes against humanity (extermination) cases, the objective
probability test was used to test if the starvation went towards the physical
destruction of the group (genocide and extermination as a crime against
humanity).
There did not seem to be consistency in relation to the inhumane acts and persecution
cases.
Neither of these tests would provide an exact result to what constitutes
starvation but they demonstrate some concern to make the determination more
objective. It is possible that the ICTY has not had to make a strict delineation because
the acts complained of were so clearly criminal.
4.3 Analysis of the findings from research question three: What was the line
dividing starvation, and enforced or deliberate starvation?
In Chapter 3, we observed that the judges did have ways of determining the line.
They used the existence or non-existence of discrimination and also the existence or
82
Renee Dopplick, ‘Famine and International Criminal Law Under the Rome Statute’ (Inside Justice
27April 2009) < http://www.insidejustice.com/intl/2009/04/27/famine_rome_statute/ > accessed 6 May
2019.
37
non-existence of direct criminal intent. Discrimination in this context meant the
discriminatory intent of a perpetrator from knowingly participating in a system or
enterprise that discriminates on political, racial or religious grounds. Direct criminal
intent in this context meant to the intent to commit the underlying act.
In relation to the first technique, discrimination on political, racial or religious grounds;
In the ICTY cases, abuse was usually inflicted on certain groups, with the individuals
singled out for maltreatment because of their membership of that group. The
perpetrators did not meet this treatment out to the members of their own group, just the
members of the groups that they singled out. For instance, in the camps, only certain
groups were deliberately and intentionally deprived of food and other life-essential
supplies.
As the Omarska, Trnopolje and KP Dom cases show, there was a marked
contrast between the treatment of Serbs and non-Serbs and sometimes between the
detention staff and detainees.
The Trial Chamber is also satisfied that the horrendous conditions of

detention and the demoralizing treatment of detainees in Omarska camp
were sufficiently degrading and traumatizing to constitute per se an
outrage upon personal dignity, which qualifies as persecution since it was
clearly committed on discriminatory grounds. 83
Trial Chamber expressly held that it was obvious to Krnojelac, as it would

have been to anyone at the KP Dom that the disparity between the treatment
of the non-Serb and Serb detainees was deliberate and was effected by the
intention of the principal offenders to discriminate against the non-Serb
detainees on religious and political grounds.84
In Krajišnik the ICTY Trial Chamber stated that speeches and statements could refer to
intent in genocide cases:
‘When reviewing speeches and statements ... in search of evidence of
genocidal intent, utterances must be understood in their proper context’85
Some commanders and military leaders intended to starve a specific group:
83 n (57) para 191.
84 n (25)para 490.
85
n (10) para 1092.
38
At the ICTY the prosecutors brought genocide charges against a
single camp commandant against whom there was ample evidence of
his hatred of and intent to destroy Bosnian Muslims. He likened
himself to Adolph Hitler and repeatedly swore his intention to kill or
reduce to slavery all Bosnian Muslims.86
In relation to the second technique, deliberate intent, in chapter 3 provided

many examples of accused directly expressing their intent to deliberately starve
a certain group and evidence of a document stating "do not feed the Muslims”.
This made it clear for the prosecution and everyone that Starvation did not happen
by accident it was a plan and a tool used for ethnic cleansing of a group.
Humanitarian assistance were blocked by an order with the aim of starving besieged
population:
The denial of humanitarian assistance may have various aims. In a

conflict where civilians are targeted, the displacement of part of the
population or their starvation is such an aim; this could, for example,
further a policy of ‘ethnic cleansing’. The aim of sieges or blockades
is to bring hostilities to a quicker end with less casualties for the
besieging forces by obliging the besieged forces to surrender.87
4.4 Analysis of the findings from research question four: What were the
challenges faced by Prosecution in these cases?
Given the burden of proof, there were many challenges that the Prosecution had
to face in prosecuting enforced or deliberate starvation. One of these was the lack of
clarity around concepts, and the absence of starvation from any of the concrete acts
listed in the ICTY Statute. But through these cases, there is now a clear line of
86
ibid para 626.
87
Christa Rottensteiner, ‘The denial of humanitarian assistance as a crime under international law’ 30-
09-1999 Article, International Review of the Red Cross, No. 835
39
jurisprudence to facilitate the work of courts of the future that may adjudicate cases
where starvation plays a more central role.
People clearly suffered in the Balkan wars. But how much of that was a tragic
but natural consequence of war, and how much of it was the result of blame-worthy
behaviour? In prosecutor v. Milorad Krnojelac, several Defence witnesses mentioned
that there were food shortages in Foča. The Trial Chamber accepts that there may have
been a general shortage of food in the Foča region during the conflict, but it is satisfied
that there was a deliberate policy to feed the non-Serb detainees barely enough for their
survival. 88 For example starvation occurred in Srebrenica because the Serbs were
deliberately cutting off access to food by obstructed food convoys from entering the
enclave. Serbs were not allowing food into Srebrenica.
In some cases, it was difficult to prove the actus reus and the mens rea. For
example, Kvočka submits he never had the requisite discriminatory intent, arguing that
he is married to a Bosnian Muslim and had close association with non-Serbs even
during the war. However, in the Appeals Chamber’s view, such findings do not
preclude a reasonable trier of fact from concluding, in light of all the evidence provided,
that the accused intended to further a joint criminal enterprise whose purpose was to
persecute the non-Serbs.89
The ICTY has required linkage, also known as causation: the accused’s conduct,
the actus reus, must be a ‘substantial cause’ of the victim’s death. This does not always
require evidence that the accused’s conduct was the sole or main cause of death.
Chapter 2 and 3 have both revealed the terrible conditions experienced by the people in
the detention camps and under siege in Sarajevo, Srebrenica and elsewhere. One of the
contributions of ICTY jurisprudence is the clear message that one does not need to
show a dead body to prove murder, and there is flexibility in labelling the conduct of
the accused (i.e. it does not always have to be direct perpetration, which usually requires
a showing of direct causation). However, one commentator believes that the failure to
charge General Galić with starvation-related crimes was due to weakness of causation
evidence:
88 n (25) para 139.

89
Prosecutor v. Miroslav Kvočka et al. (Appeal Judgement), IT-98-30/1-A, (28 February 2005) para
230, 233.
40
In the event, Galić was not charged with any offence relating to the use of
starvation or the denial of the necessities of life of the civilian population.
The reason for this may be quite simple: ‘as no one appears to
have died of starvation, cold or dehydration in Sarajevo, it is unlikely
anyone could be held liable for using starvation of civilians as a method of
warfare during the siege’90
It is obviously wrong to claim that death must be a result in order for

starvation to be charged. But there would have been strategic reasons for the
Prosecution’s decision not to charge starvation-related crimes in this case.
Some defence witness denied the occurrence starvation and claimed it to
be only propaganda to win international support: A defence witness told former
Bosnian Serb military chief Ratko Mladic’s trial that Bosnians lied about deaths
from hunger during wartime in a bid to win international support.
"It is not true that the Muslims of Srebrenica are starving because the
Serbian villages were too rich to bring the Turks of those villages to
starvation so soon."
Asked whether he believed that anyone starved to death during the war, the
witness said that this was just propaganda.
“I am very sceptical that anyone died. I believe this is the standard

propaganda of the opposing side, which wanted intervention by the
international community. I don’t believe anyone died from hunger during
the war,” he said.91
90
Riordan, KJ,’Shelling, Sniping and Starvation: The Law of Armed Conflict and the Lessons of the
Siege of Sarajevo’ [2010] VUWLawRw 12; (2010) 41(2) Victoria University of Wellington Law
Review 149, 172
91
Denic Dzidic and Denis Dzidic, ‘Mladic Witness: Hunger deaths were propaganda’, (30 October
2014) <https://balkaninsight.com/2014/10/30/mladic-s-witness-claims-hunger-deaths-were-
propaganda/> accessed 10 May 2019.
41
CHAPTER 5: CONCLUSION
The above analysis in the previous chapter has shown that the ICTY has produced an
impressive body of jurisprudence on interpreted and expanded international law
through its decisions in regards to enforced or deliberate starvation.
ICTY has convicted and prosecuted Starvation that is linked to criminal
conduct as a war crime, an act of persecution comprising a crime against humanity
and or potentially as an act of genocide by ‘deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in
part’.
During the Yugoslav wars, enforced or deliberate starvation was most
commonly deployed through two ways: siege or humanitarian blockade, and in
detention camps. The starvation wrought unimaginable suffering and resulted in the
deaths of number of civilians during the Yugoslav war. The author feels that the
horrible starvation atrocities that happened in sieges like Sarajevo and Srebrenica is
being repeated again in Yemen.
In Yemen, 12 million people are facing starvation from an economic blockade
in a country dependent on imports for 90 percent of its food, from deliberate and
targeted airstrikes on local farms and fisheries and from explicit decisions by warring
parties and their Western allies to block humanitarian aid.92 "For every child killed by
bombs and bullets, dozens are starving to death and it's entirely preventable."93
Just like the ICTY, the conflicts in Yemen are non-international armed
conflicts. The ICTY has demonstrated that prosecuting enforced or deliberate
starvation in both international and non-international armed conflicts as war crimes is
possible and credible.
“What is inhumane, and consequently proscribed, in international wars, cannot but be
inhumane and inadmissible in civil strife.” 94
ICTY demonstrated that existing international criminal law provides legal
options for prosecuting enforced or deliberate starvation. Ranging from war crimes,
crimes against humanity, to genocide, which may be used to address the deliberate
starvation of civilian. Undoubtedly its jurisprudence will influence the future practice.
However, it is also clear that there are many limits and difficulties with this. ICTY
lacks the sufficient legal mechanism and definition regarding starvation. The ICTY
statutory framework makes no express reference to enforced or deliberate starvation.
92 n (1)
93 Pamela Falk, ‘Yemen's most innocent victims: 85,000 children under 5 may have died from
starvation, report says’, CBS News, 20 November 2018 <https://www.cbsnews.com/news/yemen-civil-
war-victims-85k-children-dead-starvation-save-the-children-report-analysis-today-2018-11-20/
>accessed 10 May 2019
94 n (81)
42
If the scope of enforced or deliberate starvation is specifically defined. Firstly, we
could guarantee a more accurate accounting and a sharper application of international
law. Secondly, it would mean that in future those like General Galić would be likely
to face indictments relating to enforced or deliberate starvation as other crimes under
international criminal law.
Finally, we could conclude that ICTY’s case law downplayed enforced or
deliberate starvation in a manner that can be used to create a culture of focused
prosecutions for enforced or deliberate starvation for the future.
43
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48

Critical Analysis of Cases Involving Allegations of Deliberate Starvation at The ICTY

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Critical Analysis of Cases Involving Allegations of Deliberate Starvation at The ICTY

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Zhejiang Gongshang University

Title: A critical analysis of cases involving allegations

School: School of Law

Major: International Law

Student Name: Nazly Ahmed Amir Hafez Sadik

Supervisor: Suzannah Linton

To the best of my knowledge and belief this dissertation contains

This dissertation contains no material, which has been accepted

Key Words ： ICTY, enforced or deliberate starvation, prosecution, siege,

CHAPTER 2: THE IDENTIFICATION OF ICTY CASES INVOLVING

CHAPTER 3: EXAMINATION OF THE CASES ON THE BASIS OF THE

CHAPTER 4: ANALYSIS OF THE FINDINGS ................................................................. 31

CHAPTER 5: CONCLUSION ................................................................................................... 42

History provides plentiful examples of large numbers of humans dying from

Although the deliberate starvation of an enemy population is as old as war itself,

1.2 Objectives of research

All the materials studied will be in the English language.

A few words on methodology are necessary here. In seeking to answer the

During the Yugoslav wars, enforced or deliberate starvation was most

2.1 Siege or humanitarian blockade

Siege or humanitarian blockade was employed across Bosnia and Herzegovina.

2.1.1 The siege of Sarajevo

In this situation, starvation was not a natural by-product of the fighting.

2.1.2 The ‘Safe Area’ of Srebrenica

Prosecutor v Radovan Karadžić (Trial and Appeal Judgements)

2.2 Detention camps

Watch., October 15 1995).

2.2.1 Foča Kazneno-Popravni Dom (KP-Dom)

The relevant cases from this camp are:

Prosecutor v. Milorad Krnojelac (Trial Judgement and Appeal Judgements)

According to the Trial Chamber in Prosecutor v. Milorad Krnojelac, KP Dom

2.2.2 Manjača camp

The relevant cases from this camp are:

Prosecutor v. Momcilo Krajišnik (Trial and Appeal Judgement)

According to the Trial Chamber in Prosecutor v. Radoslav Brđanin,

The food in the camp was extremely insufficient, consisting of a thin

According to the Trial Chamber’s Sentencing Judgement in Plavšić,

2.2.3 Omarska camp

The relevant cases from this camp are:

Prosecutor v. Milomir Stakić (Trial and Appeal Judgements)

As a rule, food at Omarska amounted to starvation rations. Detainees were

2.2.4 Keraterm camp

The relevant cases from this camp are:

Prosecutor v. Miroslav Kvočka et al. (Trial Judgement)

2.2.5 Trnopolje camp

The author has identified the following cases as relevant:

Prosecutor v. Miroslav Kvočka et al. (Trial and Appeal Judgements)

2.2.6 Čelebići camp

3.1 Research question 1: How was the enforced or deliberate starvation

Article 7(1) of the ICTY Statute ascribes responsibility to those who

3.1.1. Crimes against Humanity

Inhumane acts, treatment or conditions

Mucić was also found to be directly responsible for the inhumane

Living conditions at Omarska and Keraterm were brutal and inhumane.

As noted by the ICTY Trial Chamber in Krnojelac, violation of fundamental rights

The case of Prosecutor v. Goran Hadžić involved an accused charged

The former President of Serbia, Slobodan Milošević, faced a persecution charge

These persecutions were committed on the discriminatory grounds of

From on or about 1 March 1992 until 31 December 1995, Slobodan

3.1.3 War Crimes

Violations of the laws and customs of war

Grave breaches of the Geneva Conventions of 1949

The Trial Chamber in Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim