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Should restricting access to aid be considered a crime against humanity under the R2P framework? Should R2P be expanded to include deliberate restriction of aid or willful abandonment of populations in the face of natural disasters? Part One of this two-part series outlined the debate that occurred in 2008 surrounding Cyclone Nargis in Myanmar. It also highlighted the popular arguments for including instances of willful omission into the R2P framework. Part Two will explore the arguments against the expansion of R2P to include crimes of omission, in particular, willful inaction in the face of natural disasters. Furthermore, this part will attempt to find the best way forward that prioritizes the concern for civilians on the ground in natural disaster situations where potential crimes against humanity are occurring
Why Expanding R2P Will Hurt the Doctrine Through Ideological Overreach
Should the scope of Responsibility to Protect (R2P) include willful inaction in the face of natural disasters? The arguments against expanding the scope of R2P to include willful inaction in the face of natural disasters are often centered in the concern of ideological overstretch and safeguarding R2P from further backlash. Whether or not such instances should be considered R2P cases has surprisingly generated somewhat of a one-sided consensus within the international community concerning the Cyclone Nargis crisis in 2008.
Many prominent NGOs, the UN Secretary-General and his special adviser on R2P, pro-R2P governments and the usual skeptics have spoken out against extending R2P to cover the international response to natural disasters on the grounds that it would stretch the concept beyond recognition or operational utility. Their core argument is that R2P is already highly controversial –– broadening its scope would make its application much more difficult. Expanding the doctrine could have the perverse effect of weakening support for tackling the Rwanda-like crisis of tomorrow.
Even the most senior scholars on R2P, like the former Special Adviser to the Secretary-General on the Prevention of Genocide, Edward Luck, have expressed hesitancy over incorporating willful omission in the face of natural disasters into R2P. Luck suggested at the time of Cyclone Nargis that: “it would be a misapplication of responsibility to protect principles to apply them at this point to the unfolding tragedy in Myanmar.” Luck also mentioned that since the Outcome Document of the 2005 [World] Summit limited R2P to just four crimes, “we must focus our efforts on implementing these principles in these four cases.” UN Secretary-General, Ban Ki-moon, believed that the case of Myanmar was a humanitarian crisis and it should be dealt with it that way. According to Gareth Evans, if R2P “is to be about protecting, the Inuit people of the Arctic Circle from the ravages of climate change — if it is be about protecting everybody from everything — it will end up protecting nobody from anything.
Theoretically, the misapplication of the responsibility to protect to natural disasters might damage the R2P principle itself, making it more difficult to enact in genuine cases of genocide and mass atrocities. Paragraphs 138 and 139 of the 2005 World Summit Outcome represent an agreed upon international consensus on the scope and breadth of the doctrine. These sections were carefully engineered by negotiators to ensure that R2P only apply to four crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. Expanding R2P to include natural disasters and grave humanitarian situations would be inconsistent with the R2P’s founding language. It would also validate the fears of many states that R2P would be used to further infringe on the sovereign rights of states.
The current vitality of R2P is intimately tied to the reality that there is a deep misunderstanding about R2P in the international community, as many governments misconstrue the norm as a Western interventionist ploy. With the BRICKS countries and many in the Global South still mistrustful of R2P, advocating the expansion of R2P in this climate could be devastating to the doctrine. Thakur Ramesh stated at the time of Cyclone Nargis that invoking R2P is justified to stop large-scale killings or ethnic cleansing, however it cannot be invoked in cases of natural disasters. Furthermore, the Asia Pacific Centre for R2P did recognize the possibility of a crime against humanity being committed if “the Burmese government is deliberately withholding aid to people who are facing immediate risk of death.” The Centre ultimately advised against labeling the Cyclone Nargis crisis an R2P situation, stating that: “At present there is no evidence of widespread intent by authorities to cause great suffering.” Beyond their doubts about what expanding R2P would mean for the future of the doctrine, it’s clear the Asia Pacific Centre for R2P, among others, determined there was not a sound legal foundation for labeling the crisis in 2008 as “R2P applicable.”
Legally, many argued at the time that blocking aid isn’t a violation of one of the four R2P crimes. For acts to constitute crimes against humanity there must be a clear pattern with obvious intent. Alex Bellamy made this point by reiterating that crimes against humanity involve acts committed as part of a systematic attack against a civilian population. Bellamy claimed that the government of Myanmar was not engaged in such attacks in the Irrawaddy Delta since it was not denying all aid, or preventing aid agencies already deployed in the region from going about their work. Furthermore, he believed there was no evidence of widespread intent by military junta to cause deliberate suffering and that proving so would be nearly impossible. Determining intent, according to many, is the main reason why Myanmar was not an R2P-applicable case (although many like Wong and Ford strongly disagreed). If cases of willful omission by governments legally triggered the R2P doctrine, there would still be compelling reasons R2P-based intervention would be an inappropriate path according to some.
The political opposition to expanding R2P to include natural disaster situations, specifically at the United Nations Security Council, can’t be overstated. Several Security Council members made it clear during that they would block any attempt to use the Council to impose assistance against the wishes of the Myanmar’s government. Additionally, Russia and China’s outright opposition to calls for R2P in such situations is a major obstacle and clear indication that invoking R2P would never get past the Security Council. During the Cyclone Nargis, China and the Association of Southeast Asian Nations rejected the possibility of forcibly delivering supplies without the junta’s consent and argued that R2P did not apply to natural disasters.
The positions of China and the ASEAN countries only grew stronger after France’s Foreign Minister called for invoking R2P. The reluctance of ASEAN to view Cyclone Nargis as an R2P situation was not only because they did not believe that the principle applied in this case, but also because they were concerned about the potential interference in a nation’s domestic affairs. China, for example, claimed that the situation in Myanmar was not a matter of “international peace and security” and didn’t apply to the Security Council. There were other pathways at the UN, China argued, more appropriate for coordinating the delivery of international assistance (a point also made by many opponents to applying R2P in Myanmar).
Another important counterargument to advocates of expanding R2P is that misapplying the Responsibility to Protect would make humanitarian conditions worse in Myanmar and elsewhere. Some commentators in 2008 were fearful of any forceful action by external actors to force aid into Myanmar for fear that their efforts would backfire and cut off the aid that was already successfully entering the disaster zones. Looking forward, they argued, efforts to apply R2P again, in a case of large-scale killings, could be undercut. In other words, they feared that invoking R2P in Myanmar could have endangered lives elsewhere tomorrow and possible even delayed immediately help for Nargis victims.
On this point, the impracticality and potential collateral damage associated with potential military action under an R2P mandated mission underscore the broad concerns from many in the international community about how R2P would be actualized. As Alex Bellamy stated in 2010: “those who have attempted to use R2P to justify the delivery of humanitarian aid against the wishes of the host state (Myanmar) have not really considered the practicalities.” From airdrops to full-scale invasions, it’s hard to see any viable and practical approaches to implementing R2P in a natural disaster setting without further harming the livelihood of civilians on the ground, he said. Bellamy aptly summed up the counter-productivity of potential intervention strategies: “The problem with these approaches is they threaten to divert attention away from the delivery of humanitarian relief, making cooperation with local authorities more difficult and regional support less forthcoming, ultimately delaying assistance to those who need it most.”
Andrew O’Neil stated in 2008 that a full-scale invasion with humanitarian goals would have improved the conditions of the victims on the ground. Bellamy and many others in the genocide prevention community had major problems with such proposals, more specifically, the time it would take to mobilize, the effect it would have on aid flows and the likelihood it would be met with military resistance by the junta. Airdropping aid was another possibility proposed by many, but Bellamy and others noted the imprecision of airdrops, the possibility of drops being seized by the government, and the need for medical care and water purification kits to be delivered on the ground.
It’s hard imagine aid being delivered effectively without the cooperation of the Myanmar’s government, on top of the fact that Myanmar government would have likely expelled all of the United Nations staff members who were managing ongoing aid operations. More useful and practical options include utilizing regional organizations in cooperation with the UN Secretary General’s office, along with pressure from the UN Security Council and the General Assembly. Working to secure pathways and facilitate the work of associated relief agencies like UNICEF, the World Food Programme and UNHCR are some of the more tangible steps that can be taken to help civilians on the ground.
Ashley McLachlan-Bent and John Langmore claimed that “although it may be weak when it comes to rebuking the misjudged actions of its member states, ASEAN in the aftermath of Cyclone Nargis was, arguably, far more successful than any other attempts to engage the regime, conduct disaster assessments and facilitate the entry of aid into the country.” This reflects the sentiments felt by many, not only that invoking R2P during Nargis would have been counterproductive, both in terms of getting aid to civilians and in ensuring R2P’s utility in the long-term, but that there were more feasible options involving regional actors and the UN that were ultimately more constructive.
This brief has outlined the arguments for and against making R2P applicable in situations of natural disasters, or in cases of willful inaction by governments when their populations are facing humanitarian catastrophes. It is the hope that this piece helps one better understand the debate that occurred during the Cyclone Nargis crisis in 2008, as well as the continuing discussions within the international community on the appropriateness of viewing cases of willful omission through an R2P framework. While there were strong arguments made by many, including several of the founders of R2P, throughout the Cyclone Nargis crisis there remained several points that both sides agreed upon
Firstly, this is a debate that has waned since 2008 largely without a solution from the mass atrocity/ genocide prevention community. Given the mass confusion and disagreement during the last natural disaster turned mass atrocity situation (Cyclone Nargis), not having this discussion in the present could sacrifice timely and coordinated responses in the future. Working through this complex issue and establishing a strong international consensus or framework of action might avoid the delayed action or ineffective cooperation that would occur the next time a Cyclone Nargis comes around. This isn’t an impossible feat – the line that divided those for and against applying R2P in Myanmar wasn’t that wide. For example, even those who’ve argued against incorporating such cases into R2P have conceded that a situation like Cyclone Nargis came awfully close to being an R2P situation. It is important to note that the international community has rarely seen such examples of intentional omission to act in the face of natural disasters – the mechanisms for action and opportunities for such debates have been few and far between. Given the acceptance by many that such acts constitute crimes against humanity, along with the rising severity in storms and destructive weather patterns due to the effects of climate change, it might be time to revisit this issue sooner rather than later.
Secondly, the torchbearers of the R2P doctrine would be wise to use this issue as an opportunity to refine and perfect the norm, specifically on how it would apply in specific cases. It’s important to remember that in 2008 the international community unanimously accepted that the R2P exists and does require states to protect populations at risk. Since then, the norm has only grown in acceptance and importance. The main question is not whether or not states accept R2P, but rather how to apply it. Not only is this of great importance in terms of working out the unique case of R2P and natural disasters, but it’s also reflective of the larger issues that face the R2P norm. Establishing consensus in order to shape a framework for applying R2P in unconventional cases (where crimes against humanity are occurring) remains a major challenge. Doing so while stressing an understanding of an R2P that flexes its preventative aspects (Pillars I and II) rather than interventionist ones will be just as important.
A new view of R2P, coined by Jarrod Wong as “a constructive interpretation,” can address some of the aforementioned challenges. According to Wong, this evolved view of R2P can “apply not just to a government’s failure to protect its people from affirmatively perpetrated mass atrocities but also from harm based on omission where the government’s failure to act also constitutes a crime against humanity under international law.” The constructive interpretation of R2P would remove the focus off of the reference to natural disasters and instead shift it to crimes of omission where the failure to act constitutes a crime against humanity under international law. It’s important to point out that “natural disasters” were originally among the categories qualifying for R2P, but were ultimately removed by the time the U.N. adopted the doctrine in 2005. Wong’s interpretation reflects the points made by many: that the focus on “natural disasters” avoids the important distinction that it’s not that disasters at fault, but rather the human element that can acerbate suffering and constitute a crime against humanity.
According to Lloyd Axworthy, former Canadian foreign minister, “there is no moral difference between an innocent person being killed by machete or AK-47, or starving to death, or dying in a cholera pandemic that could be avoided by proper international responses.” Viewing R2P in such a way can provide for a more consistent approach to situations in which crimes against humanity are committed by willful omission. Ultimately, this is an issue that comes down to how one determined R2P should be used moving forward. Some claim that the international community should recognize that R2P “is not a delicate vase but a sturdy pot which states must be willing to take down off the shelf and use.” Others, more concerned with preserving R2P’s already fragile political capital, would be reluctant to agree that applying it in situations other than classic conflict-based crimes is constructive for both the norm and its future utility. The lack of consensus on how to apply R2P in cases of willful omission requires greater debate and increased attention. Doing so would prevent delayed responses to a future crisis, as well as the unconstructive and time-consuming political debates that would inevitably accompany it. Having constructive dialogue now on this complex issue might better protect civilian populations at risk in the future, which is what R2P ultimately was created to do.
Should restricting access to aid be considered a crime against humanity under the R2P framework? Should R2P be expanded to include deliberate restriction of aid or willful abandonment of populations in the face of natural disasters? This piece is the first part of a two-part blog series that will examine this largely unsettled issue from the point of view of the mass atrocity/ genocide prevention community.
Since the advent and proliferation of the Responsibility to Protect norm (R2P), which emerged from the Conference on State Sovereignty in 2001, a global paradigm shift has begun to take root concerning the relationship between governments and their peoples. R2P puts forward that it is a state’s duty to protect their populations and that sovereignty should no longer be used a shield for governments to hide behind. In particular, states have a responsibility to protect civilians from four particular crimes, namely: crimes against humanity, war crimes, ethnic cleansing and genocide. The growing ubiquity of R2P and its institutionalization can be seen (in recent years) within the United Nations, regional organizations and capitals across the world, thus shifting the focus of international conflicts from the state to the human level. The debate and controversy surrounding R2P has been plentiful and typically focused on the question of sovereignty, the legitimacy (and effectiveness) of interventions and the utility of R2P as a normative framework for action. But lost aside these more prominent debates is a particular controversy that emerged after Cyclone Nargis in 2008 in Myanmar.
Prompted by France’s Foreign Minister invoking R2P at the UN in the wake of the Myanmar government’s reluctance to allow aid to civilians, a fierce debate ensued concerning the doctrine’s applicability in Myanmar, and more generally, its applicability to natural disasters. The question of whether or not a government’s refusal to aid civilians in a disaster setting constitutes an R2P case quickly became a hot topic in policy circles both in Turtle Bay and in other global political spheres in 2008. But due to blowback, any traction this idea had received has largely abated since. Given the recent cases of governments refusing to directly or indirectly assist civilians during natural disasters, namely in Darfur and Myanmar, the relevancy of this debate should be revisited. While many in the mass atrocity/genocide prevention community have shunned the prospect of natural disasters being considered as R2P cases, the legal and moral arguments for doing so shouldn’t be discounted. This piece will seek to outline the recent history of this debate, the prevailing arguments on both sides, and a way forward that most effectively prioritizes constructive action and policy-specific solutions over attention-diverting ideological and politically motivated debates.
Why Including Crimes of Omission into R2P is the Logical Evolution of a Doctrine
As set out in the 2005 UN Summit Outcome Document, R2P applies only to a state’s failure to protect its populace from mass atrocity crimes, i.e., “genocide, war crimes, ethnic cleansing, and crimes against humanity.” The UN’s definition is distinctly narrower than the original expression of the doctrine (as formulated by the ICISS), as it specifically excludes instances such as “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.” The result was what Alex Bellamy of the University of Queensland has called “R2P Lite”. Nevertheless, crimes against humanity remained a trigger for the invocation of R2P, according to the 2005 Outcome Document. The core question that had divided the international community in 2008 was this: could and should inaction of a government be categorized as a crime against humanity?
Some commentators believe that R2P can be applicable in such cases, specifically Gareth Evans (although his opinions reflect mixed views). In 2008, Evans claimed that “Myanmar’s failure to help its citizens and refusal to allow for the delivery of aid, [its actions] could be characterized as mistreatment of the population, and therefore an ‘attack’ against its population that intentionally caused great suffering.” Thus, in situations where a country denies aid and at the same time does not take measures to help its population, many believe the doctrine of R2P could be implemented on the basis of a “crime against humanity.” Also chiming in on this issue in 2008 was John Virgoe, the International Crisis Group’s Southeast Asia Director, who stated that whilst his organization wasn’t ready to call for an international intervention, the situation was approaching an R2P scenario because of the potential commission of crimes against humanity. Former Canadian foreign minister Lloyd Axworthy was one of the most ardent supporters of viewing the situation in Myanmar through an R2P lens. Axworthy claimed that due to past failures in Darfur and Congo, the international community needs advocates who would support and advance R2P in situations where crimes against humanity are occurring. Axworthy also believed that “the application of R2P to the situation in Myanmar would be a strong demonstration, especially to Asian countries, of the importance and viability of this international norm.”
From a legal perspective, Jarrod Wong’s inquiry into whether crimes of omission fit the description of the Rome Statute’s definition of a “crime against humanity” is particularly useful. Wong points to Article 7 of the Rome Statute of the International Criminal Court, which defines crimes against humanity as: “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: murder, or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Wong makes the point that triggering R2P for crimes of omission is justified by prevailing international criminal jurisprudence, and “there is no need to recognize natural disaster situations or any particular context involving harm by omission as a new and independent basis for invoking R2P.”
Theoretically, the only difference between crimes of commission, such as mass executions, and acts of omission, is in the severity of the crime not the type. According to Wong it is the state’s reluctance to act, not the natural disaster, that is considered the cause of the harm. If a state’s deliberate inaction can be identified as a crime against humanity, and the state is manifestly failing to protect its population, R2P should legally apply to the situation. Because of this, according to Wong, R2P can then be “applied equally to a state’s failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity.” Gareth Evans also stated that what occurred in Myanmar could classify as a crime against humanity in two ways. Firstly, it could classify as a crime against humanity by fitting the description of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. Secondly, it may fit under the international crime of “extermination”, defined in the Rome Statute as including “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”
Others have echoed Wong’s legal rationale by citing that the jurisprudence of international courts establishes that crimes against humanity can be caused either by acts of commission or omission, but only if those omissions are found with criminal intent. Stuart Ford found this point particularly important since many who reasoned that R2P did not apply to the situation in Myanmar claimed the junta’s blocking of aid was substantially different from deliberate state-sponsored killings that classically trigger R2P. But Ford effectively makes the legal case that “if killing via omission demonstrates the requisite criminal intent, it is just as much a crime against humanity as killing by commission.”
Judith Raffelseder’s legal dissection of this issue reached the same conclusion. The evidence of the situation proved that the military junta’s actions met the criteria of a crime against humanity because “it consisted of an organized pattern of non-accidental repetition of criminal conduct.” Raffelseder also concluded that the “blocking of aid was a crime against humanity that was part of a widespread and systematic attack against the civilian population.” Furthermore, Ford also concluded in his legal analysis that “all of the elements of a crime against humanity were present in Myanmar in the immediate aftermath of Cyclone Nargis.” One of Ford’s central points was that while the legal foundations for triggering R2P in a case like Cyclone Nargis were quite strong, the political will to implement it wasn’t there (in fact it was quite the opposite). Given this strong legal foundation for classifying government refusal to aid civilians in the wake of natural disasters as a crime against humanity, and given the fact that the purpose of R2P is to provide a framework for which the international community can effectively address such crimes, it is hard to discount the rationale of those calling for R2P to apply in such situations.
Among the concerns of expanding R2P is that doing so would jeopardize its already fragile political standing and ultimately the effectiveness future applications. Politically, it’s apparent why natural disasters were ultimately removed from the list of crimes that would trigger R2P from the 2005 Summit Outcome document. But is R2P really at risk of being overexposed and overused, or is it just as much at risk of being diminished as a result of its underuse? Given the international paralysis on Syria, the unrelenting abuses in Darfur and ongoing mass atrocities in Myanmar, the consequences of failing to exercise R2P to stop atrocities is a somber indication that the former is proving to be the more perilous.
Proponents of employing R2P in Myanmar reasoned that the reluctance to do so in situations where natural disasters are intertwined with crimes against humanity contradicts the doctrine’s core intention: to save civilians lives. At the heart of this line of thinking is the idea that there is no moral difference between a government shooting 100 civilians or killing 100 by blocking access to clean water –– the result is the same. As Gareth Evans put it, “if what the generals are now doing, in effect denying relief to hundreds of thousands of people at real and immediate risk of death can itself be characterized as a crime against humanity, then the responsibility to protect principle does indeed cut in.” Roberta Cohen also argued in support of R2P’s applicability by stating “that the aftermath of Cyclone Nargis is a case for R2P because what started as a natural disaster turned into a man-made disaster, and the crime committed could constitute a crime against humanity.”
Realistically, it’s probably true that 99.9% of natural disasters would never fit the requirements of an R2P situation. The rarity of such situations might lead some to believe that its inclusion into R2P would be a pointless endeavor. But the situation in Myanmar showed that in the face of such a rare situation, the international community was truly divided on how to respond and unsure of the legality and appropriateness of applying R2P to such a unique situation. But even those who disagreed on R2P’s applicability agreed that it should not have been so easily ruled out. One of the founders of R2P, Ramesh Thakur, who disagreed that Cyclone Nargis was an R2P situation, publicly stated “it would be short-sighted to rule out the relevance and application of R2P should the situation not improve and people start dying in large numbers from the after-effects of Cyclone Nargis.” Another architect of R2P, Gareth Evans, agreed that “when a government default is as grave as the course on which the Burmese generals now seem to be set, there is at least a prima facie case to answer for their intransigence being a crime against humanity – of a kind which would attract the responsibility to protect principle.”
A core problem though is not the weak consensus on R2P’s applicability here, but rather the lack of clarity on how it could be put into practice in such situations. On this point, Judith Raffelseder alludes to the importance R2P can play in acting as a framework that can guide responses to such situations. She claims that “the international framework of disaster response laws does not, or only to a certain extent, provide an answer to the refusal of aid in the aftermath of a disaster, whereas the relatively new concept of R2P is a useful tool in this respect.” While any sort of military intervention triggered by R2P would have likely been counterproductive in immediately helping victims on the ground, placing the situation in terms of R2P could have been useful by stressing the non-military means of coercion that define R2P. Timothy Garton Ash, a supporter of employing the R2P doctrine in Myanmar, also wondered how the international community could use non-military means of coercion to help civilians on the ground. Ashley McLachlan-Bent and John Langmore put forth that “ASEAN was ideally placed to use the concept of R2P as a way of demonstrating to the region that the principle does not automatically imply military intervention, but offers a variety of diplomatic pressures and strategies to ensure the best outcomes for those suffering.”
Regardless of which side of the argument one lies on, there’s a clear gap in terms of how an international response should look like under the R2P framework. Such a lack of policy-specific solutions may impede the breadth of the international community’s toolkit the next time a Cyclone Nargis situation occurs. The international community must ask itself whether this inclusion of instances of willful omission (into R2P), be it in cases of natural disasters, be seen as either the latest stage of an evolving understanding of R2P, or an ideological overstretch that, although morally attractive, jeopardizes the future of the R2P doctrine.
The second part of this blog series will explore the arguments against the expansion of R2P to include crimes of omission, in particular, willful inaction in the face of natural disasters. Furthermore, this piece will attempt to find the best way forward that prioritizes the concern for civilians on the ground in natural disaster situations where potential crimes against humanity are occurring.