War Crime vs Crime Against Humanity
There are two crimes in the Rome Statue, "war crime" and the inferior "crimes against humanity". Colloquially these two charges seems to be conflated. A "Crime Against Humanity" in the course of a war, does not elevate it to a "War Crime". Outside the UN, other organizations may informally claim a "war crime" is any actionable crime of international law that occurred during a war. Moreover, crimes against humanity "have not yet been codified in a dedicated treaty of international law unlike genocide and war crimes".
A "Crime Against Humanity", is defined as
- For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- d. Deportation or forcible transfer of population
- h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
- j. The crime of apartheid;
- k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
For the purpose of paragraph 1: ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
Under the Elements of the Crime, "Extermination", "Deportation or forcible transfer of population", "Persecution", and most notably a more vague catchall of "other inhumane acts."
In summary, if the belligerent did so "with knowledge of the attack" and it was "committed as part of a widespread or systematic attack directed against any civilian population"
- you have an "inhumane act" that causes "great suffering" by intentionally targeting a civilian population you have a crime against humanity.
- or, you can show the group being targeting regardless of suffering, you have "persecution" a crime against humanity.
- or, you can show a blockade is a crime against humanity if it was part of scheme of
- "deportation or forcible transfer of population"
- "a crime of apartheid"
I believe you can make a convincing case that intentionally starving or denying water to a civilian population is likely to cause "great suffering" and constitute an "inhumane act". Which is all that's needed here.
Though with intentionality it seems this act likely also fall into "persecution" which is pretty broad, and since most of the forms of persecution seem to be explicit elements of apartheid -- that also rather suitable. Apartheid excludes persecution on gender, and religion for example, and is defined as a system of "racial discrimination" which is explained in UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) convention
the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
I would say the right to water is a fundamental freedom, which is affirmed by the UN General Assembly and Human Rights Council,
In 2010, the UN General Assembly adopted resolution 64/292 recognizing “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”. Subsequently, the Human Rights Council, in September 2010, affirmed this recognition.