This blog is authored by Vikrant Sharma from Symbiosis School of Law, Pune.
In the 21st century, the world is closer than ever before. Globalization has led to a scale of trading that would have been unthinkable even a century ago. With this rise of global trading, global supply chains, including those of critical goods, have become increasingly long. Such supply chains have recently been tested extensively by the COVID-19 pandemic. However, apart from natural disruptions such as pandemics and natural disasters, such sensitive supply chains are also susceptible to a different type of turmoil- one caused by armed conflict.
Armed conflicts are expected to cause economic disruptions by their very nature. As an example, consider the fact that credible estimates suggest that the US spent over 2.313 trillion dollars after the invasion of Afghanistan in 2001, which includes operations in Afghanistan as well as neighboring Pakistan. However, as the world grows increasingly interconnected, the economic costs of war are increasingly seeping out of the belligerent parties, and into the world at large. When critical goods, which are indispensable for third parties, are at risk of being affected by the armed conflict, shouldn’t it be prudent to expect the law of armed conflict to protect such vital supplies?
At present, the only relevant law is contained in Article 23 of the IVth Geneva Convention, which places an obligation on states to allow free passage of medical and hospital stores as well as items that are essential for religious worship, which is intended for civilian use. The broad framing of this text allows for its interpretation to include third parties as well since the mandated free passage is to another ‘High Contracting State’ rather than merely the opposite party in the armed conflict.
Consider the case of the ongoing Ukraine-Russia conflict. The two countries together accounted for about 30% of the total global wheat production in 2021-22. Until last year, Ukraine was reported to be exporting 4.5 million tonnes of agricultural yield through its ports per month, as per the International Chamber of Commerce. However, due to the ongoing invasion of Ukraine by Russia, Ukraine’s wheat supplies are expected to fall by 13.5 million tons from last year to an expected 19.5 million tons in total for the year 2022-23, including expected output from Crimea. On top of the drop in expected production, it has been extensively reported that many shipping routes out of the Black Sea had been mined and that the Russian fleet in the Black Sea had been curtailing the movement of Ukrainian vessels. Given this background, Ukraine’s infrastructure ministry reported that it had only been able to export 2.5 million tonnes of grain in July 2022, compared to the 8 million tonnes it had expected to export.
The Secretary General of the United Nations had warned that the blockade would threaten the food security of tens of millions of people, increasing famine, mass hunger, and malnutrition.
A key factor in this situation that must be considered is that most of the grains were expected to reach and feed areas in the Middle East and Africa, which are not parties to the conflict. The EU also warned that unless the grains were allowed to be exported, tens of thousands of people in these regions were at risk of starvation. While a deal has been brokered by Turkey and the UN to allow the movement of vessels carrying grains, its overall success remains to be determined.
Surely, any deliberate military action that could lead to the starvation of thousands should be classified as a war crime, in keeping with the reason for the founding of the law of armed conflict to prevent unnecessary suffering. And yet, we find that the present law of armed conflict is silent on a blockade of critical items, such as food, that could affect a third party not involved in the conflict.
It is therefore imperative, as starkly exemplified by the situation in Ukraine, that the trade of critical goods should be protected under jus in Bello.
This further raises a host of questions that must be answered, the primary being what should be considered ‘critical goods’ to be accorded this protection. Would it be limited to food, medical supplies, essential religious items, and other things that are essential to human survival and dignity, or would it also include things that are critical for industries to survive? The situation surrounding China and Taiwan is considered one of the potential flashpoints for a future conflict. Taiwan accounts for nearly 60% of the global revenue from the outsourcing of semiconductor manufacturing. Semiconductors are an essential part of most electronic items used by people around the world, ranging from tiny smartphones to most modern cars. Semiconductors are also increasingly used in the medical industry. In case of a possible future conflict between China and Taiwan, should the infrastructure that produces and exports semiconductors be protected under jus in Bello, to allow industries around the world to run? If not, there are bound to be disruptions in most industries around the world, leading to a harmful economic impact on potentially millions of people.
The purpose of international humanitarian law was to set a minimum standard of civilian protection during warfare, recognizing that all human beings possess the right to live with dignity. While there may be a range of arguments deliberating on where the line must be set, it is increasingly clear in today’s world that critical goods, the trade which is essential for the survival and dignified living of people, even if they are halfway across the world, must be accorded protection. It could further be argued that the protection of such goods should be the remit of international trade and investment law and the various international bodies that are designed to promote international trade. While that may apply to general trade in goods, certain goods are so essential to human survival that they must be accorded a special status. Critical goods like food grains and medical supplies are so vital to the preservation of human life that they cannot be left outside the scope of protection of the law of armed conflict in a globalized world. Doing so threatens unnecessary suffering upon civilians who are unrelated to the armed conflict and could even be situated thousands of miles from the fighting. Lessons must be learned from the blockade of food grains in Ukraine, to ensure that such a situation cannot arise in the future. Trade and movement of critical goods, therefore, must be protected under international humanitarian law.