Did Russia commit a war crime in leaving the Ukraine grain deal?

On July 17, Russia announced that it had withdrawn from the Black Sea Grain Initiative (“the Initiative”), a deal brokered in 2022 by the United Nations (UN) and Turkey that allowed Ukraine to safely export grain through the Black Sea.

Since then, Russian drones have destroyed grain warehouses on Ukraine’s Danube River ports and Russia is reportedly preparing to blockade Ukraine. US Secretary of State Antony Blinken and the European Council both characterized Russia’s withdrawal from the Initiative as “weaponizing food.”

Russia has previously been accused of using hunger as a weapon following its full-scale invasion of Ukraine, including during the siege of Mariupol. However, Russia’s withdrawal from the Initiative extends the effects of its starvation tactics beyond Ukraine. As of July 10, the UN estimated that in the year since the Initiative was brokered, thirty-two million tons of food commodities had been exported from Ukraine to forty-five countries. Ukraine supplied over half of the World Food Programme’s wheat exports in 2022, which went to Afghanistan, Ethiopia, Kenya, Somalia, Sudan, and Yemen—areas where there is “acute humanitarian need.” UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Martin Griffiths said that in the absence of the Initiative “[s]ome will go hungry, some will starve, many may die.”

It is imperative that Russian officials are held accountable for the starvation and suffering that the withdrawal from the Initiative causes. But could Russian officials’ actions in withdrawing and enforcing the withdrawal constitute war crimes or crimes against humanity under international criminal law?

The ICC May have Jurisdiction

The International Criminal Court (ICC) has jurisdiction over crimes committed “on any part of the territory of Ukraine” since November 21, 2013. The starvation that will result from Russia’s withdrawal from the Initiative will not occur in Ukraine, nor did the act of withdrawing from the Initiative. However, Russian officials’ subsequent actions to prevent Ukraine from exporting grain will take place in Ukrainian territory. The ICC has ruled that for certain crimes, both the act and the consequence of the act may be part of the actus reus: the actions that, together, constitute a crime. For example, murder requires both the killing and the resulting death. Therefore, the fact that part of a relevant crime occurred in Ukraine may be sufficient for the ICC to act. 

Further, Afghanistan and Kenya, two of the countries where the effects would be acute, are both ICC member states. The ICC could therefore consider opening separate investigations related to international crimes resulting from officials’ actions vis-à-vis those countries.

Tricky Legal Elements

Under the Rome Statute of the ICC, “intentionally using starvation of civilians as a method of warfare” is a crime when committed in the context of an international armed conflict. Notably, there is no ICC case law on this provision, although there is scholarship on its potential application.

To prove this crime, it must be shown that the perpetrators deprived civilians of something considered “indispensable to their survival”—such as food. Further, it is not required to demonstrate causation—that people actually suffered or died. Russian officials’ actions would therefore likely suffice.

Additionally, the perpetrator must have intended to starve the civilians “as a method of warfare,” and the acts must have been committed in the context of an international armed conflict. The ICC’s understanding of intent is that it encompasses “acts that are taken with the knowledge that the prohibited outcomes will occur in the ordinary course of events.” While this may be the case, there are a number of factors to consider that could make “a causal route… too complex.” Further, Russia ostensibly withdrew from the Initiative in response to UN and Western countries’ sanctions. While the sanctions and conflict may be sufficiently linked, Russia’s withdrawal from the Initiative is, it could be argued, a means of diplomacy, not warfare. The “context of an armed conflict” criteria only requires that the armed conflict “play[s] a substantial role in the perpetrator’s decision”—not that it is the “ultimate reason for the criminal conduct.” Still, the ICC prosecutor may consider the conflict too tangential to Moscow’s decision in this case.

However, Russian officials’ use of military force to destroy Ukraine’s food exports—also a weaponization of hunger—is a much more direct assault on Ukraine and is therefore more likely to be treated as a means of warfare committed in the context of the international armed conflict. That said, while these actions would still deprive civilians overseas of something indispensable to their survival, proving starvation as a war crime would still require proof that officials could reasonably expect starvation as a result.

"Other Inhumane Acts"

Even if Russian officials’ actions in withdrawing from the Initiative and enforcing the withdrawal do not meet the standard of a war crime, they may constitute crimes against humanity. While there is no crime against humanity that specifically covers starvation under the Rome Statute, there is a catchall crime that it may fall under: “other inhumane acts.”

First, to constitute “other inhumane acts,” the crime in question must have been “committed as part of a widespread or systematic attack against a civilian population.” “Widespread” refers to attacks “conducted on a large scale,” such as with a “high number of victims,” while “systematic” refers to acts “of an organised nature” unlikely to have randomly occurred. A governmental plan or policy choice may indicate a “systematic character.” Given both that Russia’s withdrawal from the Initiative and the resulting enforcement are official government policies, and that the decision affects numerous countries, both criteria would likely be met.

Further, the perpetrator must have inflicted “great suffering or serious injury to body or to mental or physical health” through an “inhumane act” that “was of a character similar” to other crimes against humanity. International courts have found, for example, that “brutal and deplorable living conditions imposed upon… detainees” such as to deteriorate or destroy their physical and psychological health were of sufficient gravity and were comparable to other crimes against humanity. Given the effects of starvation, Russian officials’ actions likely meet these standards.

However, unlike the war crime of starvation, which focuses on the act of deprivation, the crime against humanity of other inhumane acts focuses on the effects, and therefore requires causation—Russian officials must not only have anticipated starvation, but their actions must be linked to demonstrable “great suffering or serious injury.” This is more difficult to establish and requires waiting to monitor the effects of Russia’s withdrawal from the Initiative and its subsequent attacks and blockade against Ukraine.

No justice without accountability—for all of Russia’s atrocities

Russian officials’ actions require investigation and a significantly more detailed legal analysis. However, treating and referring to Russia’s withdrawal from the Initiative as what it is—the weaponization of food—is critical. While ostensibly a negotiation tactic over Western sanctions, Russia is using the lives of individuals in countries not party to the conflict as bartering chips. This cruelty is aggravated by the fact that it targets countries already hit with crises such as climate disasters, armed conflicts, and internal unrest.

The sustained horror over Russian atrocities in Ukraine has led to a rare but welcome push for accountability. Now that the devastation is reaching other parts of the world, there must also be justice for any victims outside of Ukraine—including those who will suffer from Russia’s withdrawal from the Initiative.

Source: Celeste Kmiotek for Atlantic Council